Williams Engineering and Contracting Company, Respondent, v. The City of New York, Appellant

Williams Engineering and Contracting Company, Respondent, v. The City of New York, Appellant. First Department, May 31, 1912. Pleading — when amended answer to amended complaint allowed — • laches — facts pleaded by amended answer — facts considered by court on motion—conditions imposed. A defendant should be permitted to. serve an amended answer to an amended complaint, unless he has been guilty of such laches in making the motion as will render it inequitable to the plaintiff to permit the desired amendments to be made. The objection of laches loses much of its force when the defendant is a municipal corporation engaged in defending the public treasury. But a plaintiff should not be delayed or prejudiced in the prosecution of the action by a belated amendment of the answer. Facts unknown to the defendant’s officers when its original answer was drawn, or, if known, not communicated to its attorney, may be pleaded in an amended answer. On a motion for leave to serve an amended answer to an amended complaint the court need not consider whether facts sought to be pleaded will, if proven, tend to defeat the plaintiff’s claim. Conditions imposed upon granting a motion to serve an amended answer stated. Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of March, 1912, denying the defendant’s motion for leave to serve an amended answer to the amended complaint. Clarence L. Barber, for the appellant. L. Laflin Kellogg, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: There can be no valid objection to granting the motion unless the defendant has been guilty of such laches as would render it inequitable to plaintiff to permit the desired amendments to be made, and even this objection loses much of its force when the defendant is a municipal corporation engaged in defending the public treasury. In. point of fact no such laches are shown to exist. In so far as defendant seeks to withdraw an admission as to the copartnership of the original directors, it appears that that admission was made in reliance upon statements made by said contractors, or some of them, which defendant now claims to have discovered were untrue. Other matters now sought to be pleaded were, as it is said, either unknown to defendant’s officers when the former answer was drawn, or, if known, were not communicated to the corporation counsel who drew the answer. Whether any of the facts now sought to be pleaded, will, if proven, serve to defeat the plaintiff’s claim we are not called upon to consider and do not decide. We think, however, that the defendant should be permitted to plead them so as to be in a position to raise the question as to their legal effect. The plaintiff should not, however, be delayed or prejudiced in the prosecution of its action by this belated amendment of the answer. The order appealed from will, therefore, be reversed, and the motion granted, without costs in this court to either party, upon payment by defendant to plaintiff within ten days of all the costs of the action, except the accrued costs of the reference, and upon the further condition that the defendant stipulates that the date of issue shall remain unchanged; that the amendment of the answer shall not operate to vacate the order of reference, or be made the basis of a motion to vacate said order and that all the proceedings had and testimony taken before the referee shall stand, with leave to either party to introduce such further competent and relevant evidence as it may desire. Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. Order reversed, without costs, and motion granted upon the conditions stated in opinion. Order to be settled on notice.