Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.
This action was instituted on November 23, 1964 to recover damages allegedly sustained by plaintiffs, who are husband and wife, as the result of the wife's being injured on April 27, 1964 when an automobile driven by defendant Pastuch, in which she was a passenger, struck the rear of an automobile operated by defendant Murray.
The issue on this appeal, taken by plaintiffs upon leave granted, is whether, under the circumstances of this case, the trial court abused its discretion in granting motions made orally by defendants on September 13, 1966, after a jury had been selected for the trial of the case, seeking leave to amend their answers to set up an additional defense.
The complaint was filed November 23, 1964. Defendants' answers, which denied negligence and asserted only contributory negligence as an affirmative defense, had been filed January 14, 1965. The case was first listed for trial in the daily calendar call of December 6, 1965 and was then carried into 16 separate daily calendar calls until September 12, 1966, when the trial actually began. The jury was selected and sworn on that day. At the opening of the next day's session, Pastuch's attorney advised the court that he desired to amend his answer to include a defense allegedly available to him under the last paragraph of N.J.S.A. 34:15-8, a section of the Workmen's Compensation Law, which provides:
"If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong."
The court granted a mistrial over plaintiffs' objection and later that afternoon heard argument on Pastuch's oral motion
for leave to amend, in which defendant Murray joined. Despite plaintiffs' objection that the application came too late and was prejudicially unfair to them, the trial court granted the motion, invoking the spirit of the rule, R.R. 4:15-1, that "leave [to amend] shall be freely given when justice so requires."
It is clear that the quoted portion of the rule does not contemplate that application for leave to amend be a mere formality. On the contrary, the determination as to whether or not leave shall be granted involves "the exercise of the sound discretion of the court * * * in light of the factual situation actually existing at the time the application is made." Associated Metals, etc., Corp. v. Dixon, etc., Inc., 52 N.J. Super. 143, 150 (Ch. Div. 1958); see same case 82 N.J. Super. 281, 294 (App. Div. 1964), certification denied 42 N.J. 501 (1964).
In the exercise of its discretion to determine whether justice requires that leave be granted, the trial court must consider not only justice to the applicant but also justice to the adverse party. Band's Refuse Removal, Inc. v. Fair Lawn Borough, 62 N.J. Super. 522, 555 (App. Div. 1960); Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 814 (2 Cir. 1960).
As the court said of the similar federal rule in Ricciuti:
"The trial Judge's discretion to permit amendments to pleadings under Rule 15(a) is broad. We do not think, however, that his discretion is so broad as to permit an amendment when the other party ...