
    Samuel S. Butler et al., Resp’ts, v. Charles B. Farley, as Sheriff, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 19,1888 )
    
    Amendment of pleading—When motion for leave to amend must be made.
    Where counsel knew before entering upon the trial of an action the condition of the pleadings and chose to experiment with the other side as to their diligence in discovering the issues presented by the pleadings, after his discovery that they had read the pleadings before going to trial it is. too late to ask for an amendment. He is bound if he wants an amendment to ask for it before going into the trial.
    Appeal from, judgment entered in favor of the plaintiff upon verdict of a jury.
    
      James Dunne, for app’lt; Goldsmith, & Doherty, for resp’ts.
   Van Brunt, P. J.

The complaint in this action alleged in the first paragraph thereof the partnership of the plaintiffs.

In the second that they were the owners of the property in question.

In the third that the defendant became possessed of the property and wrongfully and unlawfully detained the same.

In the fourth that the defendant obtained possession under and by virtue of executions issued to him against the property of the firm of Macdonald & Farrell who claimed to hold said goods by virtue of a pretended sale and delivery thereof to them by the plaintiffs, whereas the title to said goods never passed to said Macdonald & Farrell.

In the fifth, a demand is alleged, and in the 6th, is an allegation of value and damage.

The answer denies on information and belief, the first paragraph in the complaint.

‘Then denies the allegations contained in the 2d, 3d, and „ 6th paragraphs of the complaint not thereinafter admitted, and then admits the truth of the 3d and 4th paragraphs of . the complaint.

At the trial one of the plaintiffs was put upon the stand, who was asked if his firm were the owners of the goods mentioned in the complaint and what was their value.

Upon cross-examination the defendant’s counsel asked questions tending to show the circumstances under which the goods came into the possession of McDonald & Farrell, for the purpose of showing title in them. The plaintiff’s counsel objected because the title of the plaintiffs and the wrongful detention had been admitted by the answer, and the court so held.

The defendant’s counsel thereupon moved to amend, but the court would not allow the amendment to be made upon . the trial, as the counsel knew before commencing the trial, of the condition of the pleading, and because such amendment would be depriving the plaintiffs of an admission contained upon the face of the pleadings and upon which they had relied.

To this ruling of the court the defendant’s counsel duly excepted and then proceeded with his cross-examination.

Upon the close of the examination of this witness, the plaintiffs rested and the defendant moved to dismiss the complaint upon the grounds substantially that the title to these goods was in McDonald & Farrell, at the time they were taken by him, and not in the plaintiffs.

This motion was denied and exception taken, and the court thereupon directed a verdict in favor of the plaintiffs.

It is claimed by the appellant that the question of ownership was clearly at issue, and if it was not that the plaintiffs by going to trial upon this question waived the ad • mission.

Upon both these questions the record shows that the appellant is mistaken as to the facts.

The answer, it is true, denies the second, third and sixth paragraphs of the complaint, but it does not deny them absolutely. It simply denies so much of the allegations contained in those paragraphs as are not thereinafter admitted, and the third and fourth paragraphs are subsequently admitted.

The fourth paragraph of the complaint alleges ownership in the plaintiffs, and the third shows a wrongful detention by the defendant.

Here were admitted two important features of plaintiff’s cause of action, but they were not entitled to the judgment asked for upon the pleadings because their copartnership was denied and the amount of damage, and it was to prove these allegations that the plaintiffs put their witness upon the stand.

They in no way attempted to try the issue of ownership, except so far as to qualify the witness to speak of value, and as soon as the cross-examination of the witness showed an attempt to bring in that issue of ownership, objections were raised, founded upon the admission in the pleadings.

The plaintiffs evidently relied upon the admissions in the pleadings, and did not intend to try any such issue.

It was not error under the circumstances to refuse the application to amend.

The counsel knew before entering upon the trial of the condition of the pleadings, and if he chose to experiment with the other side as to their diligence in discovering the issues presented by the pleadings after his discovery that they had read the pleadings before going to trial, it was too late to ask for an amendment.

Knowing as the defendant did the infirmities of his answer he was bound if he wanted an amendment to ask for it before going into the trial. The judgment appealed from should be affirmed, with costs.

Brady and Daniels, JJ., concur.  