Martin v. Katz
| Decision Date | 21 February 1962 |
| Citation | 224 N.Y.S.2d 568,15 A.D.2d 767 |
| Parties | Harry MARTIN, as Administrator of the Goods, Credits and Chattels of Charles Katz, deceased, Plaintiff-Respondent, v. Max KATZ, individually and d/b/a Capital Amusement Company, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
H. Mesard, New York City, for plaintiff-respondent.
J. B. Hecht, New York City, for defendant-appellant.
Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and EAGER, JJ.
Order entered on September 6, 1961, unanimously reversed on the law and the facts, and in the exercise of discretion, with $50 costs and disbursements to be paid by defendant-appellant, and motion by defendant for leave to serve amended answer granted, upon condition that defendant pay to plaintiff-respondent the costs of this appeal as aforesaid and a full bill of taxable costs to date, the issue to remain undisturbed. It is well settled that the courts should adopt a liberal policy in allowing amendments to pleadings at any time before the trial to the end that the parties may have a full and just determination of the action upon the merits (see Vol. 4 Carmody-Wait Cyclopedia of New York Practice, Sec. 26, p. 568; Shuffman v. Shuffman, 6 A.D.2d 1030, 178 N.Y.S.2d 234), and that, as a general proposition, questions relating to the sufficiency and the merits of the defenses proposed to be added by amendment should be reserved for determination on a proper motion or upon the trial. (See Carmody-Wait, supra, Vol. 4, Sec. 25, p. 566; also, Bendan Holding Corp. v. Rodner, 245 App.Div. 723, 280 N.Y.S. 252; Cohen v. Dana, 273 App.Div. 1017, 79 N.Y.S.2d 261; Anderson v. New York Central R. R. Co., 284 App.Div. 64, 65, 130 N.Y.S.2d 308, 309, and cases cited.) Therefore, under the circumstances here, it was an abuse of discretion for Special Term to unconditionally deny the defendant's motion. The circumstances are such, however, that terms by way of payment of costs to date, as aforesaid, should be imposed as a condition of allowing the service of the amended pleading (see Carmody-Wait, supra, Vol. 4, Secs. 27-28, pp. 571-575; cf. Minasy v. Foster Wheeler Corporation, 15 A.D.2d 759, 224 N.Y.S. 622). Settle order on notice.
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...unless it is obviously insufficient. (State Bank v. Keshin, Blitstein & Co., 165 App.Div. 974, 150 N.Y.S. 157; Martin v. Katz, 15 A.D.2d 767, 223 N.Y.S.2d 122.) Minkoff v. Brenner, 10 N.Y.2d 1030, 225 N.Y.S.2d 47, 180 N.E.2d 434, is not authority to the contrary. There, leave to amend the a......
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