Dubroff v. North River Insurance

The plaintiff appeals from an order permitting the defendant to serve an amended answer. The order appealed from was made upon the affidavit of the attorney for the defendant.' No reason was assigned why the affidavit was made by the attorney, rather than by the client. Whether the motion should have been granted, or whether terms should be imposed, depended upon whether the defendant, when he served his original answer, knew or could have known the facts which he wished to plead in the amended answer.

In the absence of any reason having been assigned why the motion was not made upon the affidavit of the defendant*, it was error to grant the motion. It is the knowledge of the party, and not of the attorney, which is material upon such a motion. The oath of the party, or a sufficient reason' for not presenting it, is a prerequisite to granting such a motion.

Order reversed, with $10 costs, and the motion is denied, with $10 costs, with leave to renew. All concur.