Opinion
December 17, 1951.
In this action in negligence to recover damages for personal injuries a motion made upon the trial, more than four years after the cause of action accrued, to serve an amended answer alleging an affirmative defense under section 29 Work. Comp. of the Workmen's Compensation Law, was granted, and a subsequent motion to dismiss the complaint was then granted. Judgment entered thereon reversed on the law, with costs, and a new trial granted. It was an improvident exercise of discretion to permit the amendment of the answer. The record discloses that defendants by their original answer attempted to allege the same affirmative defense which was struck out for insufficiency. Permitting that affirmative defense to be alleged by amendment almost four years later, after expiration of the time limited for the commencement of an action upon the cause assigned by the Workmen's Compensation Law, was prejudicial to a substantial right of the plaintiff. ( Jennings v. Perkins, 277 App. Div. 1143, and cases there cited.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.