Ajello v. Michele Ajello Co.

214 A.D. 729, 210 N.Y.S. 819

Opinion

Judgment unanimously affirmed, with costs. The omission to allege pursuant to rule 255 (Rules of Civil Practice) that no other action has been brought to recover any part of the mortgage debt does not in the circumstances presented by this record fatally affect the judgment. We are agreed that such an allegation, when made, does not require proof from plaintiff in its support in the first instance. The inquiry made of counsel by the learned trial justice whether there was another action pending was replied to, in effect, in the negative. It sufficed to support the finding made to like effect and would have permitted the trial court to amend the complaint on the trial. We think the complaint may now be amended accordingly pursuant to the power granted to this court by section 109, Civil Practice Act, and we so order. Present — Kelly, P. J., Jaycox, Manning, Young and Kapper, JJ. Settle order on notice.