
    Henry W. Sackett et al., Plaintiffs, v. John E. Milholland, Defendant.
    (Supreme Court, New York Special Term,
    February, 1906.)
    Pleading — Amendments by leave of court — Amendment of answer — By setting up counterclaim.
    Where, in an action to recover for services rendered as attorneys, the answer sets up as a defense that the contract upon which the action was founded was intended to apply to certain transactions only and not to all future transactions, the defendant should be allowed to amend his answer by setting up substantially the same matter as a counterclaim, though the case has appeared upon the day calendar, upon payment of all taxable costs and disbursements after service of the summons and complaint and upon condition that the case remain on the day calendar and that the amended answer be served one day after the entry of the order.
    Motion for leave to serve an amended answer.
    Schell & Elkus (Abraham I. Elkus and Horvin R. Lindheim, of counsel), for plaintiffs.
    John F. Montignani (Edward FT. Shepard and John H. Perry, of counsel), for defendant.
   Blanchard, J.

This is a motion by defendant for leave to serve an amended answer. Plaintiffs commenced action in September, 1904, to recover from defendant upon an alleged contract, providing for the remuneration of plaintiffs for services performed by them as attorneys to defendant. Issue was joined by the service of an answer in January, 1905, and the case has appeared on the day calendar during the present month. The original answer served by the defendant sets up, as matter of defense, that the contract alleged in the complaint was intended by the parties thereto to relate to certain particular transactions only, and not to cover all future transactions, as its literal terms might seem to provide. The amended answer, which defendant now desires to serve, sets up substantially the same matter as a counterclaim, upon which is demanded the reformation of said contract. Since no matter which is substantially new is contained in the amended answer, leave to serve the same should be granted upon proper; terms. In a closely similar case (Goldberg v. Goldstein, 87 App. Div. 516), the Appellate Division held that an order denying a motion like the present was improper, and reversed the same, granting leave to serve an amended complaint upon payment by defendant of all taxable costs and disbursements after service of the summons and complaint. These • terms are accordingly attached to the granting of the present motion, with the further condition that the action remain upon the day calendar, and that the amended answer be served within one day after the entry of the order herein.

Ordered accordingly.  