I dissent. The answer was clearly insufficient to admit proof of the defendant’s discharge in bankruptcy, as appears from the authorities referred to in the opinion of Mr. Justice McCarthy. I think under the circumstances that the ruling of the trial justice was correct in refusing to permit the amendment which the defendant asked leave to make. The proposed amendment would not, under the authorities cited in the prevailing opinion, be sufficient to entitle him to prove his discharge. This case has been pending since January, 1900, and in June, 1901, was before the General Term of this court, when the defendant was apprised of the defective character of his pleading. Bailey v. Kraus, 35 Misc. Rep. 851.
The laches of the defendant in not applying for leave to amend his answer, was a sufficient justification for the refusal to permit the amendment sought upon the second trial of the action. This court cannot presume that there was an abuse of discretion upon the part of the trial court. To justify us in reversing this judgment upon this ground, such an abuse of discretion must affirmatively appear in the record.
The Encyclopedia of Pleading and Practice (vol. 1, p. 522) states the rule which applies in this case, in the following language: “A party who has notice of a defect in his pleading should move to amend without unreasonable delay, otherwise the *847court will be justified in denying him leave to amend on the ground of laches.”
The remarks of Van Brunt, P. J., in Butler v. Farley, 17 N. Y. St. Repr. 109, are applicable to this case: “It was not error under the circumstances to refuse the application to amend. The counsel knew before entering upon the trial of the condition of the pleadings, and if he chose to experiment with the other side as to their diligence in discovering the issue presented by the pleadings, after his discovery that they had read the pleadings before going to trial, it was too late to ask for an amendment. Knowing, as the defendant did, the infirmities of his answer, he was bound, if he wanted an amendment, to ask for it before going into the trial.”
The judgment should be affirmed, with costs.
Judgment reversed, without costs, and new trial ordered, with leave to appellant to apply at Special Term to amend his answer.