Foerst v. Empire Life Insurance

On the appeal from an order denying a former motion for leave to amend this answer we affirmed that order upon the ground that it was not alleged in the affidavit upon which the motion was made that the defense sought to be set up by the amendment was not known to the defendant at the time of the service of the original answer; that there was a mistake in not pleading such a defense, or that the defendant was surprised at the ruling of the trial judge as to the .necessity of the amendment, and that no reason was suggested why the defense sought to be interposed was not set up in the original answer as served. Subsequent to the decision of that appeal the defendant, upon new affidavits, obtained an order to show cause why it should not be allowed to renew its motion for leave to serve an amended answer; and upon that motion the court granted leave to *88renew, and granted the motion .allowing the defendant to serve an amended answer upon the payment of certain costs therein, specified. By the affidavit upon which this motion was inad'e it appeared that the facts constituting this new defense now sought to be alleged were stated by the secretary of the defendant corporation to the defendant’s counsel at the time the original answer was prepared, but that the secretary was advised by counsel that if was tmneces^ sary to plead the facts on that subject in the answer, as, in his opinion, it was'incurnbent upon the plaintiff to prove, as part of her case,, the facts which the defendant .seeks to allege' as a partial defense. It also appeared by the affidavit of the counsel who prepared the answer that the deponent had been counsel for the defendant for many years, and had tried many cases involving this question; that in such cases it had been held that it was necessary for the plaintiff to prpve, as part of his case, the facts sought to be alleged ; that the deponent, relying upon those cases, considered that it was unnecessary and improper to plead the facts that the plaintiff must necessarily pro've ; that counsel was surprised upon the trial of the action at the view taken by the"court, that these. facts were nót a part of the plaintiff’s case, but a special defense, and must be alleged and proved by the defendant, and that it was a statement of this fact to the trial court that induced the court to allow a juror to be withdrawn.

We think that,-upon these facts appearing, the court below was justified in relieving the defendant of the effect of the mistake of tlie counsel, and that a case was presented which is-within the provisions of' the Code, giving the court power to allow an amendment to the pleading, and thus prevent a party from being subjected to a liability to which, if the correct facts had been before the court, it would not have been made liable. The defendant, upon this application, has shown an entirely, different state of facts than that presented on the former application, and we think the court below was justified in exercising its discretion in allowing the amendment. •

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Rumsby, Pattbrson and O’Brien, J J., concurred.

Order affirmed, with ten dollars costs and disbursements.