United States Drainage & Irrigation Co. v. Lucas

156 A.D. 49, 141 N.Y.S. 50, 1913 N.Y. App. Div. LEXIS 5747

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 1913
• Status: Published

Opinion

Jenks, P. J.:

The appeal raises the single question whether the terms imposed by the Special Term as a condition for an amendment of the answer are' just. The action is to recover compensation for work done and for material furnished. At trial the court-ruled that the answer did not join issue upon the quantity of work done. The defendant’s motion thereupon made for an amendment of. his answer -so that it joined issue in that respect was denied, but he was permitted to withdraw a juror in order that he might apply at Special Term. That court granted the motion upon payment of $10 costs and of the fees for witnesses in attendance upon the day of trial. The térms are wholly inadequate. The order must be modified by providing as -a condition thereof that the defendant pay the costs of the actiqn antecedent to the granting of the order. (Bruns v. Brooklyn Citizen; 98 App. Div. 316.)

• The contention that the answer did not require amendment should not be considered, for the defendant, so far as this appeal is concerned, admitted in effect that his answer was insufficient when he withdrew a juror and subsequently applied at Special Term for an amendment thereof.

The order must be modified, without costs of the appeal to' either party, by providing as a condition that the defendant within 10 days pay the costs of the action antecedent to the granting of the order, and answer within 20 days, both from the'entry of- our order of' modification.

Burr, Thomas, Bioh and Stapleton, JJ., concurred.

Order modified by providing as a condition that the defend* ant within ten days pay the costs of the action antecedent to the granting of the order,, and answer- within twenty days, both from the entry of this order; and as thus modified affirmed, without costs of this appeal to either party.