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COCKS a. RADFORD
Barnard, J.
—1. The new matter proposed to be set up in the answer, if uncontrgdicted or unexplained, constitutes a good defence. Parties, however, are not" allowed to amend their pleadings on motion, unless they offer some good and satisfactory excuse for not having before presented the matters in respect to which'they seek an amendment.
The excuse these defendants offer is, that defendant Radford was ignorant of it till after February 11, 1861, and the proof they adduce is the affidavit of said Radford. This is fully met by the affidavit of the plaintiff, who swears that said Radford knew of the transfer at the time it was made. There are no attendant circumstances lending support to Radford’s affidavit. Each of the affidavits, so far as appears before me, is equally worthy of credit. The evidence as to the truth of the matter offered as excuse being equally balanced, I cannot say that de-' fendants have excused the neglect.
Were the neglect satisfactorily excused, it would seem even then doubtful whether defendants should be permitted to amend, inasmuch as the action has been greatly delayed by
[211] the defendants, and there was some laches in making this motion; and the matters alleged in the affidavit of plaintiff, as to his being mortgagee in possession, which is not denied, would seem to entitle him to an account, notwithstanding the transfers. The motion to amend is therefore denied.
2. The motion to amend being denied, the motion to modify the order of November 14, 1860, being dependent on it, must be denied also.
Even if the motion to amend were granted, yet, as that would raise an issue which might be decided in plaintiff’s favor, and so entitle him to an account for the period in question, the motion to modify would still have to be denied, and it would be made one- of the conditions of granting the motion to amend, that defendants should stipulate that the amendment of the pleadings should not affect, impair, or modify in any way said order of November 14, 1860.
Motion denied, with $10 costs.