L. B. Foster Company v. Terry Contracting

Orders entered December 7 and December 27, 1965 granting the moving defendants' motion for leave to serve an answer containing a counterclaim to the cross answer and counterclaim of the defendant Tufano Contracting Corp., unanimously reversed on the law, the facts, and in the exercise of discretion, and the motion denied, with $30 costs and disbursements to the appellants. Three years have gone by since the joinder of issue, and this is the first time the moving defendants have made application for the relief sought. With the exception of the exact amount of damages sustained, or to be sustained, the facts pleaded in the answer were known to the moving defendants since the institution of this action. There was no need to wait until the exact amount of damages was ascertained before asserting the proposed counterclaim. If