Wilson v. Wintermute

27 N.J. Eq. 63

• Court: New Jersey Court of Chancery
• Decided: February 15, 1876
• Status: Published

Opinion

The Chancellor.

The defendant, Ensilla "Wintermute, applies for leave to> amend her separate answer,.by qualifying an admission therein that her husband was, as stated in the bill, the owner of certain promissory notes, &c.,. in her hands, for the recovery whereof this suit was instituted. From this admission, she-would except a note of $400, which she alleges was her own property. The ground of the application is mistake. She1 says she discovered, after the answer had been sworn to, that the admission embraced that note, and she says she spoke toiler solicitor on the subject and suggested that the error should be corrected, but was then informed by him that it could only be corrected by leave of the court, for which he promised to-apply. Whether the answer had been filed when the discovery was made, does not appear. It was filed on the 30th of May, 1873. She says it was when the answer was read over to her that she discovered the mistake. She has permitted more than two years to elapse before making an application to amend, and there seems to be no excuse for the delay. Besides, the proof of the alleged mistake is by no-means satisfactory ; she should have given a direct and clear statement of the circumstances. Her testimony too, as to the-ownership of the note, a point on which positiveness was to be-expected, is strikingly feeble and evasive..

The- motion must be denied..