Smith v. Equitable Mortgage Co.

26 N.Y.S. 180, 74 Hun 26, 81 N.Y. Sup. Ct. 26, 57 N.Y. St. Rep. 743

Opinion

PRATT, J.

The order denying leave to amend the answer was discretionary, and the discretion was wisely exercised. The answer expressly admits the due execution of the contract. The alleged defects in the execution of the contract, if they exist, must have been well known to appellant when the answer was interposed. If they existed, the appellant clearly elected to waive them, and defend the action upon the merits. To such election it should be held. To allow it first to admit, and then, after reflection, to deny, facts upon which the rights of parties rest, would not be in furtherance of justice.

Various other considerations, which need not be stated at length, sustain the order appealed from. Order denying leave to amend answer affirmed, with costs. All concur.