Farmers' Nat. Bank of Annapolis v. Underwood

This action was begun in 1894, and the delay for a year and a half in the service of the answer was caused by the refusal of the plaintiff’s president to appear and be examined, so that the defendant could get the necessary information to enable him to serve the same. For that delay it cannot be said that the defendant is responsible, since the final conclusion of the court upon the application for the examination of the plaintiff’s president was that his refusal to submit to the examination was not warranted. That examination was finally filed on the 14th day of September, 1896; and the defendant’s amended answer, based upon the result of that examination, was served on the 14th of October, 1896. The application for leave to serve another amended answer was made during the latter month. It cannot be said, in view of these facts, that the defendant was guilty of any laches in his effort to get his case in such shape that it would be safe for him to try it.

It is not necessary to consider whether the amended answer as proposed is in all respects sufficient as a defense or as a counterclaim. All those questions can be determined upon the trial. It is enough at this time to say that the facts which are undisputed show that the defendant has been guilty of no laches in his effort to secure the amendment which he now asks for. The motion for leave to serve the amended answer should have been granted.

The order appealed from should therefore be reversed, with $10 costs and disbursements, to be paid by the respondent; and the defendant’s motion for leave to serve an amended answer granted, on payment by him of $10 costs.