Opinion
December 18, 1950.
In an action to recover damages for personal injuries, an order was granted, on motion of defendant on the eve of trial, permitting him to amend his answer by setting out two affirmative defenses. Order reversed on the law, with $10 costs and disbursements, and the motion denied, with $10 costs. It was an improvident exercise of discretion to permit an amendment of the answer to the prejudice of the plaintiff when the facts invoked were known or should have been known to the defendant at the time the original answer was served. ( Massi v. Alben Builders, 270 App. Div. 482, affd. 296 N.Y. 767; Morey v. City of Rochester, 274 App. Div. 969; Drescher v. Mirkus, 211 App. Div. 763; Levy v. Delaware, Lackawanna Western R.R. Co., 211 App. Div. 503; Matter of Prentice, 155 App. Div. 480.) Carswell, Acting P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.