
    Lord and Taylor, Respondent, v. Edward Hatch, Appellant.
    First Department,
    March 8, 1912.
    Pleading — amendment of answer — defenses not available against complaint as drawn — costs.
    Where a complaint on an account stated alleged a written statement of account and a promise in writing to pay the same, but the proof at trial showed an account stated by implication resting on parol evidence rather than by express agreement, the defendant should be allowed to amend his answer so as to plead the Statute of Limitations, the Statute of Frauds and a discharge in bankruptcy prior to the statement of account, these defenses not being available as against the complaint as drawn.
    On granting the amendment under the circumstances aforesaid the defendant should not be required to pay full costs to the date of the application; only motion costs should be imposed.
    Appeal by the defendant, Edward Hatch, 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 14th day of December, 1911, denying the defendant’s motion, to amend the answer.
    
      George Zabriskie, for the appellant.
    
      Chester A. Jayne, for the respondent.
   Per Curiam :

The action is on an account stated to recover upwards of $100,000. The issues herein were referred to a referee to hear, try and determine on the 10 th day of June, 1911. At the close of the plaintiff’s case a motion to dismiss the complaint was made and denied. The defendant then moved to amend the answer by pleading the Statute of Limitations, the Statute of Frauds and a discharge in bankruptcy. The motion was denied by the referee, evidently on the ground that it should be made at Special Term. The motion was then promptly made at Special Term for the same relief. The defendant has not been guilty of laches. His counsel claims to have been misled, by the form of the complaint, into refraining from pleading these defenses.

It is alleged in the complaint that the account was stated between the plaintiff and the defendant on the 25th day of February, 1910 — a copy was annexed to the complaint — and that the defendant then and there promised and agreed in writing to pay the plaintiff the balance owing, as shown thereby. Upon the trial evidence was received, over objection and exception taken on behalf of appellant, tending to show an account stated by implication resting on parol evidence, and not by express agreement. Counsel for appellant claims that if the cause of action had been alleged in accordance with this evidence he could have pleaded the Statute of Limitations, which had run against many of the items, but which was not available against an express promise in writing to pay the indebtedness (see Delabarre v. McAlpin, 101 App. Div. 468), the Statute of Frauds and a discharge in bankruptcy prior to the time it is alleged in the complaint that the express promise in writing was made to pay the account. It is manifest, therefore, that the motion should have been granted. Ordinarily where a party wishes to amend his pleading by inserting new causes of action, or defenses, or counterclaims, he should be required to pay the full costs of the action to the date of the application; but in the circumstances here presented it is evident that with respect to some, if not all of these defenses, the appellant was precluded from pleading them, owing to the manner in which the plaintiff alleged his cause of action, and for this reason only motion costs should be imposed.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion granted.

Present — Clarke, McLaughlin, Laughlin, Scott and Dowling, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted.  