Opinion
September 21, 1961
Order, entered on January 10, 1961, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion for leave to serve an amended answer to allege the affirmative defense of res judicata denied, with $10 costs. The delay in making the application until more than two years after the facts arose upon which the proposed defense is based, and the indicated prejudice to plaintiff-appellant constitute laches. (4 Carmody-Wait, New York Practice, § 28, p. 572.)
Concur — Botein, P.J., Breitel, Rabin, Eager and Noonan, JJ.