Naylor v. Loomis

Woodward, J.: The original complaint in this action was for goods sold and delivered, to which an answer and an amended answer were interposed by the defendant. Subsequently, and on August 6,1902, the plaintiff served an amended complaint upon two causes of action for work, labor and services and materials furnished and for goods sold and delivered. On the 26th day of August, 1902, an answer was interposed. A reply to this answer was served on the fifth day of September by plaintiff’s attorney, who at about the' same time served a notice of trial for the September Trial Term to be held in the county of-Putnam. On the eighteenth day of September the defendant served an amended answer to the amended complaint, setting up a counterclaim in addition to matters of defense and counterclaim previously alleged. The September Trial Term was set down for the twenty-second day of September, and plaintiff’s attorney procured an order to show cause at that time why the amended answer to the amended complaint should not be stricken out upon the grounds provided in section 542 of the Code of Civil Procedure. Upon the hearing of the motion the order appealed from was made, striking out the amended answer; appeal coming to this court. By the provisions of the section of the Code of Civil Procedure cited above the defendant had an absolute right to serve his amended pleading at the time when he did, assuming that he so served it without intending to accomplish a delay in the trial of the action, and that the plaintiff would not thereby lose the benefit of the term [23] at which he might try the same. (Harney v. Provident Savings Society, 41 App. Div. 410, 412.) But the Code provides that “if it is made to appear to the court that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term for which, the cause is or may be noticed, the amended pleading may be stricken out,” etc. We think the facts presented to the learned court justified the conclusion that the amended pleading was not made in good faith, and that it was-intended to accomplish delay and loss of privileges to the plaintiff. This is practically conceded by the defendant, but it is urged that the facts thus brought to the attention of the court related to a proposition for a compromise, and that these facts may not properly bs taken into consideration upon the motion to strike out. But the provision of the statute is that “ if it is made to appear to the court,” etc., and if the facts come to the knowledge of the court which justify the conclusion here reached, it is not material how they are conveyed to the court. It is true, of course, that upon the trial propositions looking to a compromise or settlement cannot be placed in evidence. (Tennant v. Dudley, 144 N. Y. 504.) But in a mere question of practice,where the element of good faith is lacking on the part of the adverse party, we know .of no legal reason why, in the protection of the rights of his client, an attorney might not convey to the court the substance of letters or oral propositions which not only proposed a compromise, but which contained an express or implied threat .to use dilatory tactics if the proposition was not accepted. The order appealed from should be affirmed, with costs. Goodrich, P. J., Bartlett,' Hirsohberg and Jenks, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.