
    Percival Knauth et al., Resp'ts, v. Adolph Heller et al., App'lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1893.)
    
    Pleading—Amendment—Conditions.
    After the time therefor had expired, a motion was made for leave to serve an amended answer so as to allege that an agent of defendants did not have authority to make the contract in suit, the original answer having admitted such authority. The motion was supported by an affidavit tending to show excuse for delay and failure to allege the defense in the original answer. Plaintiffs resisted the motion on the ground that, as the original answer admitted the agent’s authority, they failed on his examination before trial to attempt to establish it, and that he had since left the stale. Held, that the motion should be granted upon condition that the defendants produce the agent for examination, and pay the costs of the motion and appeal.
    
      Appeal from order denying leave to serve an amended answer.
    The affidavit in support of the motion was as follows:
    “ There were several reasons why I did not amend my answer more promptly. In the first place, a settlement of this action was contemplated by me. The damages which are the subject of the counterclaim were for the loss of goods for which I believed another party, to wit, the receiver of the Crescent City Brewing Company, of New Orleans, La., was also responsible. The connection of that company with the goods in question is referred to in the plaintiffs’- last amended reply. After the receipt of the amended reply, I was instructed by my clients to proceed to New Orleans for the purpose of making an investigation relating to the same subject matter, and I told the plaintiffs’ counsel that if the defendants could secure from the receiver of the said company compensation for their loss the defendants would be in a condition to consent to a compromise. I went to New Orleans in the latter part of July, and returned during the month of August. At that time the plaintiffs’ counsel who had charge of this matter was absent in Europe, and I had to wait for his return. When he did return I informed him that defendants could not gain anything from the receiver, and that the said suit would have to proceed. I prepared the amended answer, and the same would have been ready for service in October, but the defendants’ agent in this country, Mr. Anton Schwarz, was absent in Europe, detained on account of the cholera longer than was expected, and when he came back, in the beginning of Hovember, the newly amended answer which had been prepared was sent to him, and he signed the verification, but neglected to swear to it, and started on another journey, and remained absent for some time. On the 3d inst., I sent the proposed amended answer to the plaintiffs’ counsel, with a letter explaining that it was not verified, owing to the absence of the defendants’ agent, and requesting them to waive verification and to accept the answer. In reply thereto the proposed answer was returned to me on the ground that it was not verified, and, on the further ground that the time to serve the same had expired. On or about the 13th inst., the defendants’ agent returned to the city, and I caused the .answer to be verified, and re-served the same "on the plaintiffs’ counsel, with a letter inclosing a check for ten dollars. * * * The proposed amended answer and the check were * * * returned with the indorsement that the time to serve an amended ‘answer had expired and no motion made for leave to serve the same. * * * When I was retained I received from my clients the instruction to deny the authority of the agent who contracted the loan, but upon examining the facts as they appeared to me from some of the papers I came to the conclusion that the defendants were not in a condition to deny the authority of their agent, although as a matter of fact the agent violated his duties and exceeded his authority in contracting the said loan. The fact that the agent had so violated his duty was, however, distinctly stated in the original answer in connection with other defenses. The plaintiffs caused Arnold Heller, one of the agents of the defendants, to be examined as a witness before trial, and during said examination said witness testified to facts from which I perceive that not only was the agent without authority in contracting the said loan, but that the plaintiffs were chargeable with knowledge of that fact, and that the loan, which was made solely for the use and benefit of the Crescent City Brewing Company of New Orleans, 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 examination of the said witness was only concluded a few days before I received my instruction to go to New Orleans, and it would have been entirely impracticable to prepare the amendment before my return from New Orleans, because if the result of my investigations in New Orleans had been favorable, this action would have been settled, so that in fact there was no unreasonable delay after the discovery that an amendment to the answer was necessary, and the preparation of said amendment and the service of amended answer will not necessarily delay the trial of this action. It is on the calendar, and will probably not be reached for trial until the spring. I am desirous of obtaining leave to interpose the.amendment as soon as possible, in order to obtain a commission for the examination of the witnesses for the defense. I had unusual difficulties in preparing the answers in this action. The defendants’ firm have their principal office in Prague, Bohemia. Albert Heller, the senior member of the firm, lived, however, in Nuremberg, Germany, while his counsel in Europe lives in Pilsen, Bohemia. The books of the concern were in London, England, and some of the facts connected with the defense in tbis action could only be ascertained in New Orleans, La. These facts were made known to the plaintiffs’ attorneys, and it is quite true that they extended to me unusual courtesies during the progress of the action. But I was equally lenient in granting any extension or adjournment which they sought. An order to show cause returnable in less than eight, days is applied for because of the defendants’ desire to proceed with the issuing of a commission which will have to be issued to examine witnesses" in London, Prague, and other places on the continent. No previous application for the annexed order to show cause was made to any other judge or court.”
    The opposing affidavit stated:
    “ I do not know the exact contents of the proposed amended answer, as the same was promptly returned by me when it was served, but do remember that one of the main points on account of which I returned the proposed amended answer was that defendants denied therein the making of the loan to them. This denial I can only regard, from my knowledge of the facts of the case, which have been freely discussed between me and defendants’ attorney, and from the examination of Arnold Heller, and from the papers in my possession, as not put forth in good faith. It would create a new issue in the case. The fact of the agency of Arnold Heller being admitted of record by defendants’ answer, served on February 25, 1892, I did 'not endeavor to establish it when Arnold Heller was examined by me before the trial. I do not know where Arnold Heller now is, and have no means of adding anything to the proofs already stated by me. The plaintiffs have voluntarily, at the request of defendants’ counsel, furnished him with all the information which was in their possession bearing upon this case, have rendered him copies of all their accounts kept with the defendants and their agents, and have, from time to time, supplemented the same by any additional information which was requested; and there is nothing to be litigated between plaintiffs and defendants except the matters of account about which defendants’ attorney has raised certain disputes. These matters could be easily and expeditiously settled by a referee, but defendants’ counsel has always refused to refer this case. I submit that under these circumstances plaintiffs are entitled to a prompt trial upon the issues raised by the present amended answer in this case, served on February 25, 1892, and that the issues should not be further complicated and augmented by more amended answers, which are not even presented to the court on this motion.”
    
      H. Wehle, for app'lts; A. Knauth, for resp'ts.
   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 ref using 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.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.  