
    A. & S. Henry & Company, Limited, Appellant, v. James Talcott, Respondent, Appellant. James Talcott, Appellant, Respondent, v. A. & S. Henry & Company, Limited, Appellant.
    
      Motion for leave to amend a complaint and set up a counterclaim—when it has heen once denied for laches and it introduces new issues it'will he refused—moving' ■ affidavit made hy the attorney instead of the party.
    
    The defendant in an action begun in 1898, made a motion in April, 1901, shortly before the trial thereof, for leave to amend his answer by setting up a counterclaim. The motion having been denied on the ground of laches, the defendant-commenced an independent action on the- counterclaim. The trial of the original action resulted in a verdict for the plaintiff which was ultimately reversed by the Court of Appeals. Two months after the decision of the Court of Appeals, the defendant in the original action made a motion to amend the-answer interposed in that action hy. setting up the counterclaim in question and for leave to discontinue the independent action brought by him upon such counterclaim which was at issue, but had not been tried.
    The proposed answer also renewed two defenses which the 'defendant had waived upon the former trial. The Special Term granted the motion upon terms.
    
      Held, that the motion should have heen denied, especially as the previous application had heen denied because of the defendant’s laches, and as he sought to introduce new issues into the action;
    That the moving affidavit was defective in that it was made hy the defendant’s attorney instead of by the defendant himself, and contained averments, of material matters of which the attorney could not have had personal knowledge.
    Appeal by the above-named A. & S. Henry & Company, Limited, 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 17th day of October, 1903, granting,.upon conditions,, a motion made by James Talcott for leave to serve an amended answer in the first above-entitled action, in which he is the defendant, and to discontinue the second above-entitled action, in which he is the plaintiff.
    Also an appeal by the said James Talcott from so much of such order as imposes the conditions above referred to.
    
      Harold Hathan, for A. & S. Henry & Company, Limited.
    ,Frederic B. Kellogg, for James Talcott.
   Hatch, J.:

The case of A. & S. Henry & Company, Limited, against Talcott was commenced in January, 1898. The plaintiff therein is an English corporation, and the action is brought to recover for goods sold and delivered. There does not seem to be any controversy over the fact of the delivery of the goods, the defense being rested mainly upon counterclaims alleging a breach of warranty in the sale of the goods causing damage to the defendant, and also that the goods were delivered after the time provided for in the contract and that serious damage arose therefrom. With respect to the defenses and the counterclaims a bill of particulars was served, from which it appears that the matters forming a basis therefor contain about 600 different items. After service of this bill of particulars testimony of thirteen witnesses was taken in England relating to the matters in issue under a commission issued for that purpose. In April, 1901, shortly before the cause was reached for trial, defendant claimed to have discovered a counterclaim based upon an entire failure to deliver at any time a large quantity of goods which had been ordered by the defendant and the order accepted by the plaintiff. Thereupon the defendant moved for leave to amend his answer by setting up such counterclaim. The motion was denied by the court at Special Term upon the ground of laches. Thereafter the case was tried and resulted in a verdict directed by the court for the full amount of the plaintiff’s claim. Judgment was entered thereon, from which an appeal was taken to the Appellate Division, where the same was affirmed without opinion (71 App. Div. 616). . The defendant thereupon appealed to the Court of Appeals, where the judgment was reversed and a new trial granted, based upon the ground that the case presented a question for the jury (175 N. Y. 385). Shortly after defendant’s motion to amend his answer had been denied he commenced an action against the plaintiff upon his alleged counterclaims, including the counterclaim that he had omitted to set up in his answer in the first action. Issue was joined therein by the service of. an answer, and the case has been pending since JanuaVy, 1902, buthas never been tried. About two months after the entry of the judgment of reversal by the Court of Appeals in the' first action, the defendant again moved for leave to amend his answer therein by setting up the omitted counterclaim, and also for leave to discontinue the suit brought by him against the plaintiff' herein. The court below granted the motion upon terms. From so much of the order as allows the amendment of the answer and. the discontinuance of the second action the plaintiff herein appeals,, and from so much of the order as imposes terms defendant Talcott appeals.

We are of opinion that the motion should not liavé been granted.. It seeks indirectly to do what has once been denied, viz., to amend, the answer in the first action. This was denied upon the ground that the defendant had been guilty of such laches as ought to defeat, it. If the present order be permitted to stand, the defendant will Succeed in doing indirectly what the court refused to permit him to-do in the first instance. In making the motion which resulted in this order, the defendant waited for practically two months after the decision by the Court of Appeals and until the time for trial was again approaching. The proposed answer renews two defenses-which upon the former trial were waived by the defendant, one, that the plaintiff, by reason of being a foreign corporation, has no-standing to sue in the courts of this State owing to its failure to-comply with the laws of this State, and the other, a claim for 'excessive duties paid by the defendánt; and the answer seeks to vary the terms of the contract in respect to the price at which specific goods were to be sold. Certainly the defendant ought not at this-time to be permitted to vary the terms of his contract, or inject into the case any new issues which will require, the plaintiff to make additional preparation for its defense. The plaintiff is now prepared for trial upon the issues as they stood before the motion was granted. If the new -issues are now permitted to be brought in, it may very well be that additional testimony in England will be required to be taken, and the plaintiff may be delayed in bringing its action to trial, which, after this long delay, it is entitled to have promptly disposed of. The défendant Talcott is not shorn of any rights, of which he is possessed, to make available his rights under the counterclaims. All of his interests thereunder are protected in the action which -he has brought; and while oftentimes a consolidation of actions may be desirable where the issues may all be disposed of in. one, yet, under the circumstances of this case, where there has been a trial, and where the application of the defendant has been pre-vionsly denied by reason of his neglect, we think it ought not to be granted, especially where new defenses are sought to be interposed.

In addition to this, we think the moving affidavit is defective in being made by the attorney in the case, instead of by the party. Certainly the attorney cannot have personal knowledge of the bookkeeper’s error, or of his failure to bring such error to the attention of the defendant. This omission of the party to make the affidavit is. fatal to the defendant’s motion, if it contain averments of a material matter. (Mutual Loan Assn. v. Lesser, Wo. 1,81 App. Div. 138.) The mere pendency of an action involving this counterclaim is not sufficient per se to authorize the consolidation, but it must be made to appear that the counterclaim as a defense was availed of by the defendant at the first opportunity, and of this fact there is no proof. From all that does appear it may well be that the existence of the counterclaim was within the knowledge of the defendant at the time when he served his original answer. The attorney shows no-facts and circumstances from which it may be inferred that he had knowledge of the time when the discovery of the error of the bookkeeper occurred, or when it was called to the attention of the defendant. The mere commencement of the action upon the counterclaim does not furnish the right at a subsequent time to interpose it as a, defense. Proof of the essential facts upon which to base the discretionary power of the court must be made under such circumstances, as well as though no action were pending and the application were an original one. We are of opinion that the issues-involved in the controversy between the parties are not furthered in their settlement by this amendment, or by consolidating the actions, and that the plaintiff should he left at liberty to bring its present, action to a speedy trial, unimpaired by changing the conditions and issues which this amendment will produce.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements to plaintiff, and the motion denied,, with ten dollars costs. '

Yah Brunt, P. J., Patterson, Ingraham and Laughlin, JJ.,. concurred.

Order reversed, with ten dollars costs and disbursements to plaintiff, and motion denied, with ten dollars costs.  