Congregation Rodeph Sholom v. Bradley Contracting Co.

159 N.Y.S. 70

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 16, 1916
• Status: Published

Opinion

BIJUR, J.

The motion was granted upon an affidavit of one of plaintiff’^ attorneys to the effect that at the opening of the trial the complaint was dismissed on defendant’s motion, which dismissal was later set aside upon condition that plaintiff apply at Special Term within 15 days and obtain leave to serve an amended complaint.

It seems almost superfluous to point out that such an affidavit, which, with the proposed amended complaint annexed thereto, were the sole papers upon which the application was based, is insufficient to warrant the granting of leave to amend. It appears, also, that the terms imposed, namely, $10 motion costs, were quite inadequate to compensate defendant for its counsel’s attendance at the trial.

The order is therefore reversed, with $10 costs and disbursements, but with leave to plaintiff to apply upon sufficient papers for permission to amend its complaint within 6 days after notice of service of entry of this order. All concur.