Coron v. Lincks

259 A.D. 924, 20 N.Y.S.2d 359, 1940 N.Y. App. Div. LEXIS 7317

Opinion

In an action brought by the temporary administrators of a deceased mortgagee to recover a condemnation award paid by defendant County of Nassau to the individual defendants, order in so far as appealed from, denying plaintiffs’ motion to serve an amended complaint setting forth a third cause of action for fraud and damages, reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs, the amended complaint to be served within twenty days from the entry of the order hereon. In our opinion it was an improper exercise of discretion to deny the motion. The sufficiency of the pleading should not have been decided on a motion to amend the complaint, but may be tested upon a motion directed to the pleading or made at the trial. (Newman v. Goldberg, 250 App. Div. 431.) Assuming that the proposed third cause of action is inconsistent with the first and second causes of action pleaded, this is not sufficient reason for denying the motion. (Ikle v. Ilde, 257 App. Div. 635.) Hagarty, Johnston, Taylor and Close, JJ., concur; Lazansky, P. J., dissents and votes to affirm the order on the ground that the discretion of the Special Term was not improperly exercised.