
    Salvatore CUOMO, Plaintiff, v. CITIES SERVICE OIL CO., Defendant.
    United States District Court S. D. New York.
    Nov. 1, 1957.
    
      David A. Goldner, New York City, Irving A. Thau, New York City, of counsel, for plaintiff.
    Hill, Betts & Nash, New York City, for defendant.
   LEVET, District Judge.

Motion to amend answer is denied.

The proposed Fifth Defense relating to the acceptance of a disability award, pursuant to the Workmen’s Com pensation Law of the State of New Jersey, is not a defense to this action since defendant is not an employer of plaintiff. See Title 34, N.J.S.A., Sec. 34:15-40.

Neither is the proposed Sixth Defense, raising a two-year New Jersey statute of limitations, N.J.S.A. 34:15-41 a bar to this action. The statute of limitations of the forum governs. Since plaintiff is a resident of New York, Section 13 of the Civil Practice Act of the State of New York (the so-called “borrowing statute”) does not remit him to the New Jersey two-year statute. Hence, Section 49(b) of the Civil Practice Act, a three-year statute, controls here.

Where proposed amendments to an answer definitely present no defense, allowance of such amendments is futile.

“Rule 15(a) provides that leave to amend ‘shall be freely given when justice so requires.’ The word ‘freely’ was used with deliberate intention to obviate technical restrictions on amendment. Moore, Federal Practice, p. 806. But, this does not mean that leave to amend is to be granted without limit; otherwise, the right to amend would be absolute and not rest in the discretion of the court. * * *” Friedman v. Transamerica Corporation, D.C.D.Del.1946, 5 F.R.D. 115, 116.

It is a matter within the court's discretion to consider and pass upon the sufficiency of an amended pleading on motion to file. Peterson Steels, Inc., v. Seidmon, 7 Cir., 1951, 188 F.2d 193. The court has discretion to refuse an amendment to the answer which seeks to raise a defense which is clearly insufficient. Stephens v. Reed, 3 Cir., 1941, 121 F.2d 696; Snyder v. Dravo Corp., D.C.W.D. Penn.1947, 6 F.R.D. 546, 553.

So ordered.  