25 N.Y.S. 806


(Superior Court of New York City, General Term.

October 24, 1893.)

Pleading—Amendment of Complaint—Laches.

A motion to serve an amended complaint, made nearly sixteen years after service of the original complaint, and five months after service of the last pleading in the case, was properly denied for loches.

*807Appeal from special term.

Action by George H. Wooster against Horatio Bateman and William J. Brewster, impleaded with another. From an order denying a motion for leave to serve an amended complaint, plaintiff appeals.


For former report, see 24 N. Y. Supp. 112.

The following is tire opinion of McADAM, J., on decision of the above motion:

“The actions were commenced in 1877 and 1878; have been tried and retried. The plaintiff now moves to amend the complaint in material respects. Laches are sufficient to defeat the motion. Thus, motions to amend a complaint so as to completely change it, made three years after issue joined, and nine years after the transaction, were denied for loches. Gowdy v. Poullain, 2 Hun, 218; Egert v. Wicker, 10 How. Pr. 193; Sheldon v. Adams, 18 Abb. Pr. 405, 41 Barb. 54, 27 How. Pr. 179; and Brusie v. Peck, 6 N. Y. St. Rep. 709; Johnson v. Machine Co., (Super. N. Y.) 4 N. Y. Supp. 391. Considering the character of the amendment sought, the pilgrimages the cases have gone through, and the delays already incurred, it would hardly be in furtherance of justice to allow the amendment proposed. Motion denied, with $10 costs, to abide the event.”


W. O. B. Millikin, for appellant.

Arnoux, Ritch & Woodford, for respondents.


This is an appeal from an order denying plaintiff’s motion for leave to serve an amended complaint. The original complaint was verified the 12th of July, 1877. The answer of the defendant Bateman was served on or about the 22d day of September, 1877. The same defendant served a supplemental answer on June 16, 1892, and on or about June 25, 1892, plaintiff served a reply. On November 28, 1892, defendant Brewster voluntarily appeared in the action and served an answer, and on December 13, 1892, the plaintiff served a reply. On May 24, 1893, nearly sixteen years after the original complaint was served, and five months after service of. the last pleading in the case, i. e. the reply of plaintiff to the answer of defendant Brewster, the plaintiff made a motion for leave to serve an amended complaint. The proposed amendments are of such a character as almost to completely change the complaint. The motion was addressed to the discretion of the learned court below, and we are of opinion that the discretionary powers of the court were not abused. The plaintiff has been guilty of gross loches. Without discussing the several other points raised by the learned counsel for the respondents, we reach the conclusion that for the reasons above expressed, and for those set forth in the opinion of the court below, the order must be affirmed, with $10 costs and disbursements.

Wooster v. Bateman
25 N.Y.S. 806

Case Details

Wooster v. Bateman
Decision Date
Oct 24, 1893

25 N.Y.S. 806

New York



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