Smith v. Equitable Mortgage Co.
New York Supreme Court
Appeal from special term, Kings county. Action by Frederick H. Smith against the Equitable Mortgage Company, the city of Athens, Ga., and others, to restrain defendants from issuing and disposing of certain bonds of said city of Athens to the amount of $125,000, in constructing a new system of waterworks in said city, to be used as a substitute for the Athens. City Waterworks Company.
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Appeal from special term, Kings county. Action by Frederick H. Smith against the Equitable Mortgage Company, the city of Athens, Ga., and others, to restrain defendants from issuing and disposing of certain bonds of said city of Athens to the amount of $125,000, in constructing a new system of waterworks in said city, to be used as a substitute for the Athens. City Waterworks Company. Plaintiff was the holder of $7,000 of the bonds of the waterworks company, theretofore issued under a contract between said city and one Charles E. Robinson, whereby he agreed to construct and maintain mains,…
1Opinion of the CourtPratt, J.
The order denying leave to amend the answer was discretionary, and the discretion was wisely exercised. The answer expressly admits the due execution of the contract. The alleged defects in the execution of the contract, if they exist, must have been well known to appellant when the answer was interposed. If they existed, the appellant clearly elected to waive them, and defend the action upon the merits. To such election it should be held. To allow it first to admit, and then, after reflection, to deny, facts upon which the rights of parties rest, would not be in furtherance of justice.
Various…
2Cited by4 opinions
- People ex rel. Burby v. Common CouncilNew York Supreme Court · 1895
- Diehl v. RobinsonNew York Supreme Court · 1901
- National Pipe-Bending Co. v. FisherNew York Supreme Court · 1895
- Stone v. Insurance Co. of North AmericaWashington Supreme Court · 1909