
    JACOBUS v. UNITED STATES.
    (Circuit Court, S. D. New York.
    March 19, 1898.)
    Amendment — Delaying Trial — Counterclaim.
    A ca.use which had heen repeatedly continued because defendant was not ready for trial was peremptorily set for trial on a certain day. Defendant then moved for leave to amend its pleading by setting up a counterclaim, which, if allowed, made another continuance necessary, because of the absence of plaintiff’s witness. Held that, since the issues raised by the counterclaim might be determined in an independent action, the motion should be overruled.
    This was an action by John W. Jacobus against the United States. The cause was heard on motion for leave to amend the answer by setting up a counterclaim.
    D. Frank Lloyd, Asst. U. S. Atty., for the motion.
    Henry L. Stimson, opposed.
   LACOMBE, Circuit Judge.

If in no other way than by a counterclaim in this action could the government have the question determined whether or not it is entitled to recover anything from the plaintiff, the former marshal of this district, I should be inclined to allow the amendment. But, so far as I can discover, there is no obstacle to an independent action to recover whatever may be due the government, and no authorities are presented sustaining the proposition that counterclaim is the only relief. This cause has been repeatedly on the day calendar for trial, and plaintiff has always been ready for trial. The limit of all reasonable continuance on defendant’s request was passed long since, and the case set peremptorily for the 1st day of the April term. To introduce a new cause of action in favor of defendant at this late stage, probably necessitating a further adjournment, since plaintiff’s sole witness as to the transactions out of which counterclaim arises is now in California, would be a denial of justice. The issues now raised in the cause should be tried and disposed of without further delay. Any other controversies between the parties can be disposed of in some other action.  