
    Godcheaux C. Levi, Respondent, v. Walter S. Sackerman, Appellant.
    Supreme Court, Appellate Term, First Department,
    December 22, 1927.
    Pleadings — amendment — defendant entitled to amend answer to plead Maryland Statute of Limitations — law of this State applicable.
    Defendant, having promptly applied at the beginning of the trial to amend his answer by pleading as a defense the Maryland Statute of Limitations applicable to the case, should have been permitted to amend his pleading, since, though certain Maryland decisions hold the right to amend to be waived, the law of this State relative to amendment of a pleading was applicable.
    Appeal by defendant from judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, in favor of plaintiff.
    
      Dorff & Levy [Max Dorff of counsel], for the appellant.
    
      Cohen, Cole & Weiss [Harry J. Loffert of counsel], for the respondent.
   Per Curiam.

Timely notice was given by defendant of his intention to apply to amend his answer by pleading as a defense the applicable Maryland statute of limitations. This motion the defendant promptly made at the beginning of the trial. It was denied, not in the exercise of judicial discretion but because of the controlling effect which the trial justice attached to certain Maryland decisions which held that in that State such statute would be deemed waived and would not be allowed to be interposed where not set up in the original answer, whereas the trial court should have applied the New York law relative to the circumstances under which amendments are allowed in determining the question raised by defendant’s motion.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Bijur, Levy and Crain, JJ.  