
    Percival Knauth and Others, Respondents, v. Adolph Heller and Others, Appellants.
    
      ■Amendment of answer —granted on condition of defendants Producing a witness for examination.
    
    The absence from the State of New York, so that the plaintiffs could not procure his testimony, of the agent of the defendants, with whom the transaction in suit was had, and upon whose statements the defendants based.their allegation, sought to he set up as a defense in an amended answer,
    
      Beld, to be a good ground for refusing leave to serve such amended answer, except upon condition that th“ defendants should produce such person for examination by tbe plaintiffs.
    Appeal by the defendants, Adolph Heller and others, from am order of the Supreme Court, made at the New York Special Term,, and entered in the office of the clerk of the city and county of New York on the 20th day of March, 1893, denyipgthe defendants’ motion for leave to serve an amended answer.
    The action was brought to recover the balance of a loan alleged to have been made by the plaintiffs’ firm of Knauth, Nachod & Kuhne, bankers in the city of New York, to the defendants, who were doing business in Bohemia under the firm name of A. Heller. The loan was made through one Arnold Heller, at that time the defendants’ resident agent in the United States. The complaint was served in May, 1891, the answer on January 12,1892, and a reply' to a. counterclaim contained in the answer on January 16, 1892; on February 25, 1892, the defendants served an amended answer, to which the plaintiffs served an amended reply.
    The plaintiffs examined said Arnold Heller as a witness before trial, and thereafter the defendants moved for leave to serve a proposed aménded answer, setting up the defense that the loan in suit was not made to the defendants. In support of this motion, the defendants’ attorney made an affidavit in which he stated that said agent, Arnold Heller, during his examination before trial, testified to facts from which the affiant perceived that not only ivas the agent without authority in contracting a loan, but that the loan was made solely for the use and benefit of the Crescent City Brewing Company of New Orleans, and could be repudiated by the defendants on the ground that the plaintiffs were in possession of facts and circumstances which charged'them with the knowledge of the fact that the loan was not made for the defendants, but was made for the Crescent City Brewing Company.
    The plaintiffs’ attorney made an affidavit in opposition to the motion, in which he stated that he did not know where said Arnold Heller then was, the defendants having, since the loan in suit was made, sent another agent to this country in his stead ; and that as the fact of the agency of Arnold Heller was admitted by the answer served on February 25, 1892, he did not endeavor to establish it when Arnold Heller was examined by him before trial.
    The motion was denied, and this appeal was taken from the order of denial.
    
      B. Kehle, for the appellants.
    
      A. Knauth, for the respondents.
   Per Curiam:

The objection relied on by the respondents to granting the relief-asked for is that the witness that they examined, being the person who was the agent of the defendants to whom the loan was made, was not now within this State so that they could procure his testimony. • Such objection would justify the court in refusing the relief asked for, unless the witness is produced for examination by the plaintiffs.

Under the circumstances we think the motion should be granted upon condition that the defendants produce such witness for examination, and pay ten dollars costs of the motion below, and ten dollars costs and disbursements of the appeal, and that the amended answer be served and the costs paid within two days after service of a copy of the order to be entered hereon, and the witness be produced within thirty days thereafter.

In-case these conditions are not complied with, said answer should 'be stricken out, and the order denying leave to serve said amended answer affirmed, with ten dollars costs and disbursements.

Present — "Van Brunt, P. J., O’Brien and Ingraham, JJ.

Motion granted upon the conditions stated in opinion, and ten dollars costs of the motion below, and ten dollars costs and disburse- < ments of the appeal; and that the amended answer be served and the costs paid within two days after the service of a copy of the order to be entered hereon, and the witness be produced within thirty days thereafter. In case these conditions are not complied with, said answer should be stricken out, and the order denying leave to serve said amended answer affirmed, with ten dollars costs and disbursements.  