¶1The objection relied on by the respondents to granting the relief asked for is that the witness that they examined, being the person who was the agent of the defendants to whom the loan was made, was not now within this state, so that they could procure his testimony. Such objection would justify the court in refusing the relief asked for, unless the witness is produced for examination by the plaintiffs. Under the circumstances, we think the motion should be granted, upon condition that the defendants produce such witness for examination, and pay $10 costs of the motion below, and $10 costs and disbursements of the appeal; and that the amended answer be served and the costs paid within 2 days after service of a copy of the order to be entered hereon, and the witness be produced within 30 days thereafter. In case these conditions are not complied with, said answer should be stricken out, and the order denying leave to serve said amended answer affirmed, with $10 costs and disbursements. All concur.
23 N.Y.S. 106
Knauth v. Heller
Decided April 14, 1893
New York Supreme Court · decided 1893-04-14
Action by Percival Knauth, Friederich Nachod, Alphons Jacobson, and Octavio Knauth, against Adolph Heller and others, to recover $1,994.43, the balance of a loan of $7,000, alleged to have been made by plaintiffs to defendants through their resident agent. From an order denying leave to serve an amended answer, defendants appeal.
Reversed conditionally · Decided 1893-04-14