In re Prentice

Appellate Division of the Supreme Court of New York

In re Prentice

139 N.Y.S. 1027

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 14, 1913

StatusPublished

This text of 139 N.Y.S. 1027 (In re Prentice) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Prentice, 139 N.Y.S. 1027 (N.Y. Ct. App. 1913).

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Opinion

WOODWARD, J.

The petition shows that many years ago the appellant retained the respondents, attorneys, for the purpose of getting title to and defending the possession of certain real estate in the town of Hempstead; that the litigations growing out of this retainer were conducted by the petitioners, and generally with success, resulting in vesting in the appellant property to the value of approximately $100,000. The petitioners asserted a lien against the property secured by the appellant through their efforts, which resulted in an adjudication by default for the sum of $15,258.96, with interest, bringing the amount up to about $20,000. Subsequently this default was opened, but it was provided in the order opening the default that the order adjudicating the amount, being the order of November 23, 1908, should be—

“permitted to stand as security for the performance of such final order as may hereafter be entered herein, but all proceedings under the said order are hereby stayed.”

The order further provided that the appellant be permitted to serve and file his answer as “verified on the 31st day of October, 1908,” and that the matter be referred to Robert F. Randall, to take testimony as to the value of the services rendered by the petitioners, and to report to the court. Thereafter Sandiford served his answer. Three years and a- half after serving this answer, Sandiford now asks the court for permission to amend his answer, and to set up the defenses of the statute of limitations, laches on the part of the petitioners, and negligence.

We agree with the learned court at Special Term that this is not a case for amendment. All • of the matters which the appellant now [1028]*1028seeks to set up by way of defense were equally available to him at the time of putting in the original answer, and no sufficient excuse is ■offered for not including, them. Moreover, the appellant was in default. That default was opened as a favor to the appellant, and he has accepted the favor. The answer was put in, the matter sent to a referee, and it would be an act of bad faith at this time to change the conditions of the order granting the favor.

The order appealed from should be affirmed, with $10 costs and, disbursements. All concur.

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WOODWARD, J.

The petition shows that many years ago the appellant retained the respondents, attorneys, for the purpose of getting title to and defending the possession of certain real estate in the town of Hempstead; that the litigations growing out of this retainer were conducted by the petitioners, and generally with success, resulting in vesting in the appellant property to the value of approximately $100,000. The petitioners asserted a lien against the property secured by the appellant through their efforts, which resulted in an adjudication by default for the sum of $15,258.96, with interest, bringing the amount up to about $20,000. Subsequently this default was opened, but it was provided in the order opening the default that the order adjudicating the amount, being the order of November 23, 1908, should be—

“permitted to stand as security for the performance of such final order as may hereafter be entered herein, but all proceedings under the said order are hereby stayed.”

The order further provided that the appellant be permitted to serve and file his answer as “verified on the 31st day of October, 1908,” and that the matter be referred to Robert F. Randall, to take testimony as to the value of the services rendered by the petitioners, and to report to the court. Thereafter Sandiford served his answer. Three years and a- half after serving this answer, Sandiford now asks the court for permission to amend his answer, and to set up the defenses of the statute of limitations, laches on the part of the petitioners, and negligence.

We agree with the learned court at Special Term that this is not a case for amendment. All • of the matters which the appellant now [1028]*1028seeks to set up by way of defense were equally available to him at the time of putting in the original answer, and no sufficient excuse is ■offered for not including, them. Moreover, the appellant was in default. That default was opened as a favor to the appellant, and he has accepted the favor. The answer was put in, the matter sent to a referee, and it would be an act of bad faith at this time to change the conditions of the order granting the favor.

The order appealed from should be affirmed, with $10 costs and, disbursements. All concur.

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Bluebook (online)

139 N.Y.S. 1027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-prentice-nyappdiv-1913.