McGill v. Holmes, Booth & Haydens

The order appealed from must be affirmed. The issues framed by the complaint and amended answer, admitted plaintiff’s claim.

The answer further attempted to allege an equitable set-off sufficient in amount to defeat the plaintiff’s claim. Such set-off was properly disallowed by the referee, to whom the issues herein were sent for determination.

Now defendant seeks to amend its amended answer by alleging a counterclaim for nearly $12,000 and, in addition, denies the material allegations in the plaintiff’s complaint.

It must be, therefore, apparent, that the proposed supplemental and amended answer actually proposed to make entirely new issues and entirely different from the issues framed by the complaint and by the amended answer.

The plaintiff’s claim is denied in the last proposed answer. In • the amended answer such claim was admitted, and, in addition, a very large counterclaim is alleged, something not attempted in the amended answer.

These very radical amendments, the defendant sought to have allowed to it just about'the closing of the trial, before the referee.

The referee properly denied its application, likewise the Special Term justice when the matter was presented to him-. If he had granted the motion, the trial would have rendered all the proceedings taken before the referee of no effect; the trial must have commenced again.

Plaintiff would have had cast upon his shoulders the burden of proving his case, and the defendant allowed to prove its counterclaim and disprove the plaintiff’s 'claim.

Hnder these circumstances, we think that the. order appealed from was properly made.

The defendant should 'not at this late hour be permitted to introduce its counterclaims but should sue upon the same in the usual way.

The order appealed from is affirmed, with costs.

Coklan, J., concurs.

Order affirmed, with costs.