The action is for trespass by the act of the city in depositing a large quantity of material on the plaintiff’s premises. A notice of claim was filed on February 17, 1930; and the action was commenced on January 12, 1931. An answer containing only general denials had been interposed in May, 1931. When the case was *906reached for trial on October 22, 1935, and a jury had been drawn, the defendant moved to amend its answer by setting up a justification in the nature of abating a public nuisance. These facts must have been known to the defendant during the entire period that the action was at issue. A mistrial was granted on defendant’s motion and the defendant permitted to move at Special Term to amend. The motion to amend was granted on payment to plaintiff of fifty dollars costs. Order modified by adding to the terms imposed the costs and disbursements of the action including trial fee to be taxed; and as so modified affirmed, with ten dollars costs and disbursements to appellant. There is no sufficient excuse for the laches of the defendant; and the facts shown barely warrant the exercise of the discretion at Special Term to amend. In view of the defendant’s neglect and laches, substantial terms should have been imposed. Lazansky, P. J., Young, Davis, Johnston and Adel, JJ., concur.