Berkenstat v. Oliver

Appellate Division of the Supreme Court of New York

Berkenstat v. Oliver

275 A.D.2d 679

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 21, 1949

StatusPublished

This text of 275 A.D.2d 679 (Berkenstat v. Oliver) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berkenstat v. Oliver, 275 A.D.2d 679 (N.Y. Ct. App. 1949).

Pincite

Opinion

The granting or refusal of the amendment requested was discretionary (Civ. Prac. Act, § 434; Rides Civ. Prac., rule 166), and the trial court was not required to permit an amendment against respondent Rabkin which radically changed the theory upon which recovery was sought against him. (Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220; Dexter v. Ivins, 133 N. Y. 551; Schneider man v. Mother’s Friend’s Wet Wash Laundry, 230 App. Div. 197; Spies v. Lockwood, 40 App. Div. 296.) Insofar as the judgment is in favor of respondent Oliver, it is reversed on the law and the facts, without costs, the action is severed, and a. new trial granted. With respect to respondent Oliver, the amendment requested involved no substantial change in the theory upon which plaintiffs sought recovery against him and, in our opinion, the denial of the motion to conform the pleadings to the proof was an improvident exercise of discretion, particularly since evidence supporting the theory upon which the case was tried was admitted without objection, and no claim of surprise was made when the amendment was sought. Although the motion to amend did not specify the precise amendment of the pleadings desired, there was no misunderstanding by counsel, or the trial court, as to the amendment which appellants sought. Holán, P. J., Cars-well, Johnston, Wenzel and MaeCrate, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

The granting or refusal of the amendment requested was discretionary (Civ. Prac. Act, § 434; Rides Civ. Prac., rule 166), and the trial court was not required to permit an amendment against respondent Rabkin which radically changed the theory upon which recovery was sought against him. (Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220; Dexter v. Ivins, 133 N. Y. 551; Schneider man v. Mother’s Friend’s Wet Wash Laundry, 230 App. Div. 197; Spies v. Lockwood, 40 App. Div. 296.) Insofar as the judgment is in favor of respondent Oliver, it is reversed on the law and the facts, without costs, the action is severed, and a. new trial granted. With respect to respondent Oliver, the amendment requested involved no substantial change in the theory upon which plaintiffs sought recovery against him and, in our opinion, the denial of the motion to conform the pleadings to the proof was an improvident exercise of discretion, particularly since evidence supporting the theory upon which the case was tried was admitted without objection, and no claim of surprise was made when the amendment was sought. Although the motion to amend did not specify the precise amendment of the pleadings desired, there was no misunderstanding by counsel, or the trial court, as to the amendment which appellants sought. Holán, P. J., Cars-well, Johnston, Wenzel and MaeCrate, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

275 A.D.2d 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berkenstat-v-oliver-nyappdiv-1949.

Opinion

Related

Cite This Page — Counsel Stack