#### Charles Hennion and Charles Heimerle, Composing the Firm of C. Hennion & Co., Appellants, *v.*The Henry E. Harris Co., Respondent.

(Supreme Court, Appellate Term,

June, 1905.)

Trial — Case ready for — Amended answer filed — Adjournment — Motion denied.

The answer, in an action for services in building certain crates, ■ while admitting plaintiffs’ employment, alleged that the work had been unskillfully and improperly done and counterclaimed. When the cause came on for trial, defendant by leave of court filed an amended answer denying all the allegations of the complaint," omitting all allegations of improper parties and containing no counterclaim, and defendant stated that “ If the plaintiff is taken by surprise I will submit to an adjournment of this cause. He may then put in such supplementary proof as he may want to ”. Plaintiffs’ attorney’s understanding of the offer was that when he had put in such evidence as he was prepared with, an adjournment might be had for the production of further proof of authority and, at the close of the evidence, asked for an adjournment to enable him to show the hiring by the defendant. Held, that a denial of the motion was error.

Appeal by the plaintiffs from a judgment rendered in favor of the defendant in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.

S. 0. Sugarman, for appellants.

Cowing, White & Wait (William Bell Wait, Jr., of counsel), for respondent.

Scott, J.

Plaintiffs had built on defendant’s order a certain booth to be shipped to an exhibitor at the St. Louis Fair. It is conceded that they were employed to build the booth and paid by defendant. The work here sued for was building crates in which to ship the booth. It appears that it was *664necessary to have these crates, and that they were actually used by the defendant. By its original answer the defendant admitted plaintiffs’ employment to do the work sued for, but alleged that it had been unskillfully and improperly done, and counterclaimed. This answer was verified by one of the defendant’s officers and was apparently prepared and swTorn to quite recklessly and vfithout any knowledge of the facts, for when the cause came on for trial the defendant, by leave of the court, filed an amended answer verified by another officer denying all the allegations of the complaint, omitting all charges of improper performance and containing no counterclaim. This new pleading imposed upon plaintiffs the burden of proving the authority of the person who had employed them, a fact which was admitted by the original answer. After some discussion the defendant’s attorney said: *“*If the plaintiff is taken by surprise I will submit to an adjournment of this cause. He may then put in such supplementary proof as he may want to.” The plaintiffs’ attorney swears that what he understood to be meant by this offer was that when he had put in such evidence, as he was prepared with, an adjournment of the trial might be had, if necessary, for the production of further proof of authority. This was a reasonable construction of defendant’s proposition in view of his use of the word “ supplementary.” The proposition was apparently acquiesced in, since no demur was made by the court, and the motion to amend the answer was granted without comment. At the close of the evidence the plaintiffs accordingly asked for an adjournment to enable them to show the hiring by the company, but the court, of its own motion, declined the request. The plaintiffs were undoubtedly entitled to a postponement of the trial by reason of the amendment, if they had asked for it, and we think that they were led to go on and did go on upon the faith of what they reasonably understood to be a stipulation that they might have an adjournment before the cause was finally taken under advisement. They would hardly have otherwise waived their right to an adjournment, especially as in doing so they waived the costs imposed upon defendant as a condition of amendment of the answer. As *665the case stood it was a close one on the evidence, and in our opinion the cause of justice will be best served by a retrial.

Dugro and MacLean, JJ., concur.

Judgment reversed and new trial granted, with costs to abide event.