¶1The defendant Agnes Mulligan, asserting her rights as mortgagee in possession, successfully resisted the plaintiffs’ claim to possession, and obtained a reversal of the latter’s judgment in this action for ejectment. Barson v. Mulligan, 66 App. Div. 486, 73 N. Y. Supp. 262. Upon the second trial it developed that the mortgage under which possession was claimed had been *688assigned by this defendant to one Steers in the year 1888, and, no reassignment being alleged in the answer, or proven, so far as to justify the possession in connection with the original. entry, the rights of this defendant .under the mortgage were sought to be supported by proof that the assignment to Steers was for security only. This evidence was excluded because not within the allegations of the answer, and judgment for the plaintiffs followed, with affirmance upon this ground. Barson v. Mulligan, 77 App. Div. 192, 79 N. Y. Supp. 31. Having obtained an order for the statutory new trial upon payment of costs, the defendants now move for leave to amend the answer to meet this defect in their case. In my view, the discretion of the court should not be exercised favorably to the application. There is no question that the defendant Agnes Mulligan knew all the facts, was advised as to their bearing upon the defense, as far back as the year 1897, and not inadvertently, but de-' liberately, framed the answer in its present form. The sufficiency of the answer, in view of the plaintiffs’ proof, was ruled upon at the trial nearly two years before this application, but, rather than correct the pleading then, the defendants continued to assert its sufficiency, and now move only because defeated upon appeal. There is no ground here for the exercise of discretion, unless the term im-. plies the mere fixing of a price which a party may pay, whatever "his loches, to avoid the consequences of an erroneous policy. See Stedeker v. Bernard, 10 Daly, 466; Foerst v. Ins. Co., 40 App. Div. 631, 57 N. Y., Supp. 971.
¶2Motion denied, with $10 costs.