
    DEMUTH GLASS MFG. CO. v. EARLY et al.
    {Supreme Court, Appellate Division, Second Department.
    March 12, 1909.)
    Pleading (§ 259*)—Amendment—Admissions.
    Defendant’s answer, admitting liability in a certain amount, may not be amended by withdrawal of the admission.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. § 785; Dec. Dig. § 259.]
    Appeal from Special Term, Kings County.
    Action by the Demuth Glass Manufacturing Company against Joseph N. Early and another. From an order denying an application for leave to serve an amended answer, defendants appeal. Affirmed.
    Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
    Michael F. Conry, for appellants.
    A. Delos Kneeland, George W. Files, and Richmond J. Reese, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   WOODWARD, J.

The summons and complaint in this action were served in 1902; the answer, in November of the same year. This answer admitted liability in the sum of $1,313.30. The case has been permitted to drag along, and at one time the defendants secured an order dismissing the complaint on the ground of a failure to prosecute. Subsequently, on appeal, this court reversed the order, because of the fact that the answer admitted the liability above stated. The defendants then moved the court to permit of the serving of an amended answer, which proposed amended answer eliminates the admission of liability which has stood in the pleadings for more than six years. The motion has been denied, and the defendants appeal to this court; it being urged that the original admission of liability was inadvertently made.

By the provisions of chapter 166, p. 462, of the Laws of 1908, if either party is entitled to judgment upon the pleadings, the court may, upon motion at any time after issue joined, give judgment accordingly, and the plaintiff in this action has this right, which it would be improper to take away by permitting a withdrawal of the original admission. The defendant, by admitting the liability to the extent of $1,-313.30, waived any defense to the claim of the plaintiff to that extent, “and, having once done so, he cannot subsequently invoke its protection” (quoted in Mayor, etc., of New York v. M. R. Co., 143 N. Y. 1, 26, 37 N. E. 494, 501; and see, also, authorities there cited).

The order appealed from should be affirmed, with $10 costs and disbursements. All concur.  