Black v. Black

New York Supreme Court

Black v. Black

31 Misc. 2d 184, 219 N.Y.S.2d 541, 1961 N.Y. Misc. LEXIS 2713

DecidedJune 19, 1961

StatusPublished

This text of 31 Misc. 2d 184 (Black v. Black) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Black v. Black, 31 Misc. 2d 184, 219 N.Y.S.2d 541, 1961 N.Y. Misc. LEXIS 2713 (N.Y. Super. Ct. 1961).

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Opinion

Frederick Backer, J.

Defendant moves for leave to serve an amended answer alleging certain facts necessary to his answer and setting forth an affirmative defense and a counterclaim. Plaintiff opposes the motion. She urges, among other things, vigorous opposition to the motion upon the ground that defendant violated rule VIII-a of the Appellate Division Rules for Special Terms, New York County, and rule 278 of the Rules of Civil Practice and accordingly, in the court’s discretion, the motion should be denied.

I find no merit to plaintiff’s argument in this respect. If there be such a violation it may not be interposed here or asserted in this forum as a claimed bar to defendant’s motion. Any claimed violation of the stated rules should not have the effect of denying defendant his right to raise and present all issues and put his pleadings in such shape as to litigate all questions and issues. The courts uniformly favor this position so that justice may be done between the parties (Stroock & Co. v. Jos. Lichtenthal, Inc., 225 App. Div. 732; Muller v. City of Philadelphia, 113 App. Div. 92; Harriss v. Tams, 258 N. Y. 229; Stehli Silks Corp. v. Kleinberg, 200 App. Div. 16). The motion is, therefore, granted. Defendant is directed to serve a copy of this order, with notice of entry thereof, together with a copy of the amended answer, in the form proposed, within 10 days after the date of publication of this decision and order in the New York Law Journal.

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Frederick Backer, J.

Defendant moves for leave to serve an amended answer alleging certain facts necessary to his answer and setting forth an affirmative defense and a counterclaim. Plaintiff opposes the motion. She urges, among other things, vigorous opposition to the motion upon the ground that defendant violated rule VIII-a of the Appellate Division Rules for Special Terms, New York County, and rule 278 of the Rules of Civil Practice and accordingly, in the court’s discretion, the motion should be denied.

I find no merit to plaintiff’s argument in this respect. If there be such a violation it may not be interposed here or asserted in this forum as a claimed bar to defendant’s motion. Any claimed violation of the stated rules should not have the effect of denying defendant his right to raise and present all issues and put his pleadings in such shape as to litigate all questions and issues. The courts uniformly favor this position so that justice may be done between the parties (Stroock & Co. v. Jos. Lichtenthal, Inc., 225 App. Div. 732; Muller v. City of Philadelphia, 113 App. Div. 92; Harriss v. Tams, 258 N. Y. 229; Stehli Silks Corp. v. Kleinberg, 200 App. Div. 16). The motion is, therefore, granted. Defendant is directed to serve a copy of this order, with notice of entry thereof, together with a copy of the amended answer, in the form proposed, within 10 days after the date of publication of this decision and order in the New York Law Journal.

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Bluebook (online)

31 Misc. 2d 184, 219 N.Y.S.2d 541, 1961 N.Y. Misc. LEXIS 2713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-black-nysupct-1961.

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