Delaney v. Hirt

Appellate Division of the Supreme Court of New York

Delaney v. Hirt

25 A.D.2d 636, 267 N.Y.S.2d 993, 1966 N.Y. App. Div. LEXIS 4768

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

DecidedMarch 15, 1966

StatusPublished

This text of 25 A.D.2d 636 (Delaney v. Hirt) 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

Delaney v. Hirt, 25 A.D.2d 636, 267 N.Y.S.2d 993, 1966 N.Y. App. Div. LEXIS 4768 (N.Y. Ct. App. 1966).

Pincite

Opinion

Order granting leave to amend complaint to add a cause of action in quantum meruit modified on the law and in the exercise of discretion to provide the following terms: that at or prior to the service of the amended complaint plaintiff pay all taxable costs in the action to date and that defendant be allowed to amend his answer to plead the Statute of Limitations as of the date of the service of the complaint as so amended; and otherwise the order is affirmed, with $30 costs and disbursements to appellant. The action is to recover for personal services rendered pursuant to three alleged oral contracts. Some four years after the institution of the action plaintiff sought to amend his complaint by adding a cause of action for damages based on quantum meruit claiming four times the amount originally sought. While Special Term had discretion to allow the amendment (cf. Smith v. Kirkpatrick, 305 N. Y. 66; Martin v. Katz, 15 A D 2d 767), the failure to impose terms was an improper exercise of that discretion.

Concur — Botein, P. J., McNally, Stevens, Eager and Steuer, JJ.

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Order granting leave to amend complaint to add a cause of action in quantum meruit modified on the law and in the exercise of discretion to provide the following terms: that at or prior to the service of the amended complaint plaintiff pay all taxable costs in the action to date and that defendant be allowed to amend his answer to plead the Statute of Limitations as of the date of the service of the complaint as so amended; and otherwise the order is affirmed, with $30 costs and disbursements to appellant. The action is to recover for personal services rendered pursuant to three alleged oral contracts. Some four years after the institution of the action plaintiff sought to amend his complaint by adding a cause of action for damages based on quantum meruit claiming four times the amount originally sought. While Special Term had discretion to allow the amendment (cf. Smith v. Kirkpatrick, 305 N. Y. 66; Martin v. Katz, 15 A D 2d 767), the failure to impose terms was an improper exercise of that discretion.

Concur — Botein, P. J., McNally, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

25 A.D.2d 636, 267 N.Y.S.2d 993, 1966 N.Y. App. Div. LEXIS 4768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delaney-v-hirt-nyappdiv-1966.

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