Demuth Glass Manufacturing Co. v. Early

131 A.D. 203, 115 N.Y.S. 672, 1909 N.Y. App. Div. LEXIS 772

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1909
• Status: Published

Opinion

Woodward, J.:

The summons and complaint in this action were served in 1902 ; the answer in November of the. same year. This answer admitted liability in the sum of $1,313.30. The case has been permitted to drag along, and at one time the defendants secured an order dismissing the complaint on the ground of a failure to prosecute. Subsequently on appeal this court reversed the order, because of the fact that the answer admitted the liability above stated. (128 App. Div. 893.) The defendants then .moved the court to permit of the serving of an amended answer, which proposed amended answer eliminates the admission of liability which has stood in the pleadings for more than six years. The motion has been denied, and the defendants appeal to this court, it being urged that the original admission of liability was inadvertently made. By the provisions of chapter 166 of the Laws of 1908 (adding to Code Civ. Proc. § 547), if either party is entitled to judgment upon the pleadings, the court may upon motion at any time after issue joined give judgment accordingly, and the plaintiff in this action has this right, which it. would be improper to take away by permitting a withdrawal of the original admission. The defendants by admitting the liability to the extent of $1,313.30, waived any defense to the claim of the plaintiff to that extent, “ and having once done so he cannot subsequently invoke its protection ” (quoted in Mayor, etc., of New York v. M. R. Co., 143 N. Y. 1, 26; see, also, authorities there cited.)

The order appealed from should be' affirmed, with ten dollars costs and disbursements.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.