
    Robert D. Kent, Respondent, v. Ætna Insurance Company, Appellant.
    • Affidavit used on a motion — when it may be made by the attorney — on a motion to serve an amended complaint a copy thereof should be served—it is sufficient if served when the motion is made — costs imposed asa condition of granting the motion.
    
    The rule that an affidavit of an attorney will not be received to prove facts which are necessarily within the knowledge of his client, or to excuse a default or neglect on the part of the client, has no relation to a case where the inadvertence or neglect which the party seeks to excuse is that of the attorney and not of the client.
    Where a motion to amend a complaint in an action upon an insurance policy, which alleges that the plaintiff duly performed all the conditions of the policy on his part except the conditions the performance of which the defendant had waived, by striking therefrom the words, “excepting conditions, the performance of which, defendant has waived,” is based upon the affidavit of the attorney who drew and verified the complaint, to the. effect that the plaintiff had informed him that he had performed all the conditions of the policy on his part to be performed, and that he had introduced the allegation in question out of caution, it is not necessary that the plaintiff’s affidavit should be presented in connection with the affidavit of the attorney.
    Where a party making a motion for leave to serve an amended complaint does not serve a copy of the proposed amended complaint with the moving papers, but, in accordance with the direction of the justice before whom the motion is made, serves a copy of the proposed amended complaint upon the defendant upon the day the motion is argued and the proposed amended complaint is before the court when the motion is decided, there is a substantial compliance. with the rule, that before an amendment of a pleading will be allowed the proposed amended pleading must be served upon the adverse party.
    The fact that a defendant has been compelled to pay costs upon the overruling of a demurrer to the complaint does not constitute any reason why the plaintiff, who served an amended complaint, after the overruling of the demurrer, should, as a condition of being allowed to amend such amended complaint, by striking therefrom an allegation which might render it demurrable, but which had no connection with the prior demurrer, be required to repay to the defendant the costs of the demurrer.
    "Van Brunt, P. J., dissented on the ground that the proposed amended complaint should have been served with the motion papers; . .
    Appeal by the defendant, .¿Etna Insurance Company, 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 5th day of October, 1903, granting leave to ■ the plaintiff to .serve a second amended complaint.
    
      Ernest A. Cardozo, for the appellant.
    
      Sidney Ossoski, for the respondent.
   Ingraham, J.:

This action was commenced on January 6, 1903. A demurrer on the ground of a defect of parties was interposed by the defendant. That demurrer was sustained by the Special Term, but on appeal to this court the decision was reversed and the demurrer overruled, with leave to the defendant to withdraw its demurrer and answer. Subsequently the defendant interposed an answer, whereupon the plaintiff, on the 12th of August, 1903, served an amended complaint. The defendant demurred to this amended complaint on the ground that the complaint did not state facts sufficient to constitute ,a cause of action, the objection being that there was a failure to allege performance by the plaintiff, the allegation being that the plaintiff had ■duly performed all the conditions of the said policy on his part, excepting the conditions the performance of which the defendant had waived. The plaintiff thereupon made this motion, which was granted, for leave to serve an amended complaint striking out from this allegation the words excepting conditions, the performance ■ of which defendant has waived,” so as to allege that the plaintiff had duly performed all of the conditions of said policy on his part to be performed. The defendant appealed from this order, the principal objection being that the affidavit upon which the amendment was allowed was made by the managing clerk of the plaintiff’s attorney and not by the party.

If the defendant’s demurrer had been sustained, it is quite clear that the plaintiff would have been allowed to amend by making this defective allegation certain, instead of in the alternative, and this motion at Special Term but granted the plaintiff the same right that the court would have granted him if the demurrer interposed by the defendant had been sustained. The nature of the amendment was such that there was no laches of the plaintiff to be excused, and liis affidavit was not necessary to explain or excuse the insertion in the complaint of this allegation which by the amendment is sought to be stricken out. The affidavit upon which the amendment is asked was made by the attorney who drew and verified the complaint, who states that this clause in the complaint, “ excepting conditions, the performance of which defendant has waived,” was introduced by deponent out of caution; although he was informed by the plaintiff that none of the conditions of the policy on his part to be performed had been broken by the plaintiff; and it was this-inadvertence of the attorney' Who drew the complaint that was sought to be corrected, not an inadvertence or mistake of the party, in which casé an affidavit of the party is required. The rule that an affidavit of an attorney will not be received to prove facts which are necessarily within the knowledge of his client, or to excuse a. default or neglect on the part of the client, has no relation to a case where the inadvertence or neglect which the party seeks to excuse is that of the attorney and not of the client, for in such a case it is apparent that it is the affidavit of the attorney through whose fault- or neglect the mistake has occurred that is material, and the affidavit of the party can add nothing to be considered in determining-whether or not the neglect or mistake of the attorney should be excused.

The objection is also taken that the amended complaint was not a part of the motion papers upon which the application was made, but was served by leave of the court after the application was heal’d. It would appear that this notice of motion was returnable on the 21st of September, 1903. In answer to the application an affidavit of one of the defendant’s attorneys was submitted, taking the objection that the affidavit was made by the attorney and not by the client, and that, taking into consideration the various motions that have been made and the payment by the defendant of the costs upon the demurrer unsuccessfully interposed, if the court should decide to grant the motion, the defendant should be allowed to recover, for all the unnecessary trouble and expense to which it had been put, the amount of the costs originally paid to the plaintiff.

Upon the same day that this application was made to the court the plaintiff served upon the defendant’s attorney the proposed amended complaint, with' a notice that it was served in accordance with the direction of the justice presiding in open court at Special Term upon the argument of the motion ; and thereafter the motion was granted, the order having been entered on the fifth of October and containing a provision that it was made upon the amended complaint served upon the defendant’s attorney on the 21st day of September, 1903, in accordance with the direction made in open court upon the hearing of the aforesaid motion by the justice presiding. We think that this was á substantial compliance with the rule that before an amendment of a pleading should be allowed, the proposed amended pleading should be served upon the adverse party. The proposed amended ' pleading having been served on the adverse party, and being before the court when the motion was decided, there could be no object, except to multiply motions, in sending it back to the Special Term to be disposed of on the same papers. The specific objection taken at the Special Term to the granting of the motion was that the affidavit upon which the motion was made was by the attorney and not by the party. This, as we have seen, was properly overruled by the court. The court then directed that the proposed amended complaint be served upon the attorney for the defendant, and such proposed amended complaint was served and submitted to the court, and upon it the 'order allowing the amendment was made. The amended pleading was before the court. The amendment was merely striking from the pleading a clause which might render it demurrable, and the costs imposed as a condition of the amendment were certainly all that justice required the plaintiff to pay. The fact that the defendant had been •compelled to pay costs for the interposition of a demurrer which was unjustified imposed no obligation upon the plaintiff to repay to the defendant such- costs as a condition for making an amendment which has no relation to the demurrer;

Upon the whole case we think the order was proper, and it should be affirmed, with ten dollars costs and disbursements.

Patterson, Hatch and Laughlin, JJ., concurred'; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting) :

I dissent. The proposed amended pleading should have been served as a part of the motion papers. It has been so held many times by this court. It now holds that such service is not necessary. This had never before been the rule.

Order affirmed, with ten dollars costs and disbursements.  