
    John C. Rodgers, Appellant, v. Frank H. Clement, Respondent.
    
      Amendment omitting an admission from an answer— not granted on the attorney’s affidavit.
    
    An order allowing an answer to be amended by omitting therefrom an admission of fact, which the Court of Appeals has held to be a crucial one connected with the merits of the controversy, should not be granted where the motion therefor is made on the affidavit of the defendant’s attorney, and the only reason given for the failure of' the defendant to make the affidavit is an allegation -therein, stating that the affiant is informed and believes that his client is absent from the city.
    Appeal by the plaintiff, John C. Rodgers, from an order of the ^Supreme Court, made at the New York Special Term and entered :in the office of the clerk of the county of New York on the 20th •day of August, 1900, granting the defendant’s motion for leave to •amend his answer.
    
      L. Laflin Kellogg, for the appellant.
    
      F. R. Minrath, for the respondent.
   Per Curiam:

Tire order allowing' an amendment of the answer herein should not have been granted on the affidavit ón which alone the motion for leave to amend was founded. That affidavit was made by one ■of the attorneys of record for the defendant. The proposed amendment consists of the omission from the answer as it was originally framed of an admission of fact which the Court of Appeals has held to be a crucial one connected with the merits of the controversy. To expunge that admission is radically to change the •course of the litigation. Whether the fact admitted is trúe or not rests in the knowledge of the defendant and not of his attorney, •although the latter certainly does know all that has taken place heretofore in the progress of the case through the courts and is competent to swear to the materiality of an amendment in the interest of his client. But when a solemn admission appears in a pleading and upon that admission a cause has been tried and passed upon on .appeal by the court of last resort, before the issues or the conceded facts are changed the court is entitled to the oath of the party in whose behalf the change is sought or a sufficient reason for not furnishing it should be shown. Here the attorney says merely that he is informed and believes his client is absent from the city. That is Utterly insufficient. The present order does not relate to practice •only nor to a mistake in pleading ; it afiects a matter of grave importance pertaining to the merits. The attorney cannot know the facts connected with the transactions of the parties before the action was begun and out of which it arose, and he does not claim personal-knowledge of those transactions. That being so and no sufficient •excuse for the defendant’s failure to present an affidavit being shown, the order should not have been made (Cross v. National Fire Ins. Co., 6 N. Y. Supp. 84; Clark v. Sullivan, 8 id. 565; Van Ingen v. Herold, 19 id. 456; Pach v. Geoffroy, Id. 583; Talbert v. Storum, 21 id. 719; Simmons v. Hazard, 48 N. Y. St. Repr. 290), and must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, but the=defendant is permitted to renew the motion at the Special Term on. proper papers on payment of such costs.

Present—Van Brunt, P. J., Patterson, O’Brien, Ingraham and Hatch, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendant, on payment of such costs, to renew on proper papers.  