
    Leonard Calvert, Plaintiff, v. Charles E. Thurston et al., Defendants. (Actions Nos. 1 and 2.)
    (Supreme Court, Niagara Special Term,
    March, 1908.)
    Pleading — Amendments — Amendments by leave of court: Time for amendments — Time in general: Conditions on granting leave to amend — Payment of costs.
    Where, after both parties to an action have introduced their evidence, it is discovered that, at the time of the commencement of the action, the cause of action was vested in a receiver of the plaintiff’s property duly appointed in proceedings supplementary to execution, and this fact was not set up by the defendant in his answer, and the receivership has since been discharged and the order appointing the receiver duly canceled, the defendant should not be permitted to amend his answer and interpose such defense.
    But, in another action in which the evidence has not been taken nor witnesses’, referee’s or stenographer’s fees incurred, the defendant should be permitted to amend his answer and interpose such defense on payment of ten dollars costs.
    Actions on contract. Motion for leave to serve, amended answers, setting up that at time action was brought plaintiff was not the real party in interest, also defense of payment.
    David Tice, for motion.
    D. E. Brong, opposed.
   Pound, J.

A party to an action ought to be permitted to put his pleadings in such shape as will enable him to raise and have determined at the trial every question affecting his interest involved in the subject-matter of the litigation. The court is disposed to use its power to allow amendments with liberality. But a party should not be permitted, by laches, or from misunderstanding of the rules of pleading, or otherwise, to place his opponent at an unfair disadvantage. Washington Life Ins. Co. v. Scott, 119 App. Div. 847.

According to the agreed statement of facts, plaintiff’s proofs have been taken and plaintiff has rested in both cases. Plaintiff concedes that, at the time of the commencement of the actions, he had no right to maintain same, as the causes of action were vested in a receiver of said plaintiff’s property, duly appointed in proceedings supplementary to execution. But, in June, 1907, before the answer in action Pfo. 2 was served, said receivership was discharged and the order appointing the receiver duly canceled. By failing to set up in the answers the defense that plaintiff was not the real party in interest, the defense was waived (Spooner v. D. L. & W. R. Co., 115 N. Y. 22), and plaintiff had a right to rely on such waiver and proceed to trial on the facts as they existed after the order appointing, the receiver was canceled. To defeat Mm now, by permitting defendant to interpose this defense, would, in my opinion, result in placing plaintiff at an unfair disadvantage in order to enable defendant to .have the benefit of a purely technical defense which would not be a bar to new actions brought by the plaintiff and which, if duly interposed, might have prevented plaintiff from going to trial.

On an application of this kind, it must be remembered that the purpose of allowing an amendment is to do justice and not to prevent it by permitting a party to invoke mere technicalities. Did the receivership still exist, I would grant the motion. Were it alleged that plaintiff is not now the owner of the cause of action, I would permit that fact to be pleaded. On the facts as they are stipulated, if I were to grant leave to amend, it would be only on condition that defendant pay plaintiff his taxable costs and disbursements, including referee’s and stenographer’s fees, in both cases, in case plaintiff elected to discontinue after amendment. But I deny the motion for leave to amend in tMs regard, on the ground that the allowance of the proposed amendment cannot at this time be said to be in furtherance of justice.

Mo injustice can result from permitting defendant to interpose the plea of payment by service of an amended answer, and such amendment should be allowed on payment of ten dollars costs in each action.

Motion for leave to serve amended answer granted as to plea of payment on payment of ten dollars in each action, and denied as to defense that plaintiff was not, when the action was begun, the owner of the causes of action set forth. But, if it should appear, as was suggested on the argument of the motion, that evidence has not been taken, nor witnesses,’ referee’s or stenographer’s fees incurred in one of said actions, and that the stipulated facts are incorrect in tMs regard, then, in that action, the proposed amended answer may be served on payment of ten dollars costs, for the reason that the amendment would have been allowed if tMs motion had been made before going to trial.

Ordered accordingly.  