
    (74 Hun, 26.)
    SMITH v. EQUITABLE MORTG. CO. et al.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    Pleading—Amendment.
    Where the answer in an action on a contract admits the due execution thereof by defendant city, but alleges nonperformance by plaintiff, an-order denying leave to amend the answer, so as to state that defendant, had no power to make the contract, will not be disturbed.
    
      Appeal from special term, Kings county.
    Action by Frederick H. Smith against the Equitable Mortgage Company, the city of Athens, Ga., and others, to restrain defendants from issuing and disposing of certain bonds of said city of Athens to the amount of $125,000, in constructing a new system of waterworks in said city, to be used as a substitute for the Athens. City Waterworks Company. Plaintiff was the holder of $7,000 of the bonds of the waterworks company, theretofore issued under a contract between said city and one Charles E. Robinson, whereby he agreed to construct and maintain mains, pipes, hydrants, fixtures, and appurtenances of every kind, and to supply water to the city. It was also agreed that Charles E. Robinson, his successors and assigns, should have the exclusive right and privilege to supply water for public and private use within the city for 30 years. This contract was assigned to the Athens City Waterworks 'Company. Defendant city answered, admitting that plaintiff made and entered into said contract with said Robinson, and annexed a copy of said contract to the answer. Afterwards defendant moved for leave to amend the answer by setting up certain provisions of the constitution of the state of Georgia, and decisions thereunder, declaring that under the same the city of Athens had no power to make the contract.
    The motion was denied, and defendant appeals.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Butler, Stillman & Hubbard, (Wm. Allen Butler and John Notman, of counsel,) for appellant.
    John Sabine Smith, for respondent.
   PRATT, J.

The order denying leave to amend the answer was discretionary, and the discretion was wisely exercised. The answer expressly admits the due execution of the contract. The alleged defects in the execution of the contract, if they exist, must have been well known to appellant when the answer was interposed. If they existed, the appellant clearly elected to waive them, and defend the action upon the merits. To such election it should be held. To allow it first to admit, and then, after reflection, to deny, facts upon which the rights of parties rest, would not be in furtherance of justice.

Various other considerations, which need not be stated at length, sustain the order appealed from. Order denying leave to amend answer affirmed, with costs. All concur.  