
    Charles G. Peterson, as Trustee for the Creditors of Johnson & Peterson, Respondent, v. Emily L. Felt, Appellant, Impleaded with Others.
    Laches —■ motion to amend an answer granted on payment of costs — non-appealable order.
    
    An order denying a motion for a reargument of a motion for leave to serve an amended answer is not appealable.
    A trustee of an insolvent firm on March 16, 1900, brought an action to foreclose a mechanic’s lien for work done by the firm for the defendant, the answer in which was served May 25, 1900. February 27, 1901, after the case had been placed upon the general call calendar, the defendant made a motion to amend her answer by setting up additional payments and by correcting 'alleged errors in the amount of certain payments as averred in the original answer. The defendant’s attorney explained the delay in making the motion by averring that the original answer was drawn on the last day of the time allowed for that purpose, upon statements made by the defendant’s agent from memory, and that the mistakes and omissions were not discovered until the case was being prepared for trial.
    
      Held, that, under the circumstances, the defendant’s delay did not justify a refusal to grant the defendant the desired relief, and that the motion for leave to amend should be granted, upon the payment by the defendant of the taxable costs of the action after notice and before trial, and ten dollars costs of the motion.
    Appeal by the defendant, Emily L. Felt, 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 15th day of March, 1901, denying said defendant’s motion for leave to serve an amended answer, and also from an order entered in said clerk’s office on the 18th day of March, 1901, denying a motion for a reargument of said motion.
    
      A. J. Skinner, for the appellant.
    
      Oha/rles Melville Weeks, for the respondent.
   Hatch, J.:

This action was brought to foreclose a mechanic’s lien filed partly for work and materials furnished in completing a contract between the defendant and the firm of Johnson & Peterson, for the creditors of which the plaintiff is the trustee, and partly for alleged extra work.

The action was commenced March 16, 1900. The answer was served May 25, 1900, and after certain admissions sets up payments and counterclaims. The proposed amended answer sets up additional payments and corrects alleged errors in amounts of certain payments as averred in the original answer.

The principal ground urged in opposition to the motion is the alleged loches of the defendant.

We are of the opinion that under the circumstances disclosed by t-he record the motion should have been granted upon such terms as justice required.

The case first appeared on the general call calendar on February 8, 1901, and was to be placed on the call calendar for Friday, March 1, 1901, but on February 27, 1901, an order to show cause was granted to the defendant, upon the return of which this order was made. It is true that the defendant has not made this motion very promptly, but we do not ■ think there has been any such loches as justifies the refusal of the remedy asked. Such loches as there was is explained by the attorney for the defendant in his moving affidavits, from which it appears that the original answer was drawn on the last day of the time for answering, upon the statements of the agent and attorney in fact of the defendant, made from memory, and that the mistakes and omissions were not discovered until he was engaged in preparation for trial. It appears that if the payments and counterclaims alleged in the amended answer are established, the actual amount owing from the defendant to the plaintiff will he but a few dollarsthat the firm for whose creditors the plaintiff is trustee is insolvent, in consequence of which the defendant will be deprived of any remedy therefor if not permitted to recover thereon in this action. Clearly, then, the amendment is in the furtherance of justice, and the loches has not been such as to justify a refusal to grant it. The pleas are not merely technical, nor can they be said to be dilatory, but are, apparently, real substantive defenses, and so entitled to the favorable consideration of the court.

Plaintiff’s attorney should have consented to receive the amended answer upon some terms. Before the motion was made defendant’s attorney offered to set the case down for trial for the first day succeeding the call of the same on the Friday calendar if plaintiff’s attorney would accept the amended answer, and this was before the case had been reached for trial. Had he done so, justice would not have been delayed, as is complained of by him in his affidavit.

The fact, if it be a fact, that the amended answer will require further preparation for trial on the part of the plaintiff, furnishes no sufficient reason for denying the motion under the existing circumstances.

We reach the conclusion that the order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and the motion should be granted upon payment by the defendant of the taxable costs of the action after notice and before trial, and ten dollars costs of the motion.

The appeal from the order denying a motion for a reargument of the motion for leave to serve an amended answer, which was argued with the appeal from the order, should be dismissed. It has been ■ settled by this court that no appeal lies from such an order. (Matter of Grout, 83 Hun, 25.) The. appeal should, therefore, be dismissed, with ten dollars costs and disbursements.

Yan Bbunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted ón payment by the defendant of the taxable costs of the action after notice and before trial, and ten dollars costs of motion.

Appeal dismissed, with ten dollars costs and disbursements.  