Feintuch v. Atlantic Coast Line Railroad

Appellate Terms of the Supreme Court of New York

Feintuch v. Atlantic Coast Line Railroad

135 N.Y.S. 597

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 27, 1912

StatusPublished

This text of 135 N.Y.S. 597 (Feintuch v. Atlantic Coast Line Railroad) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Feintuch v. Atlantic Coast Line Railroad, 135 N.Y.S. 597 (N.Y. Ct. App. 1912).

Pincite

Opinion

SEABURY, J.

The plaintiff has recovered a judgment for the al-

leged value of a gas stove and other articles of personal property, which he claims he delivered to the defendant’s agent at Green Cove Springs, Fla., to be transported to J. Kalin in New York City. The evidence in the case as to what articles were actually delivered to the defendant, and their value is unsatisfactory. The learned court below stated that he rendered judgment for the plaintiff reluctantly, and only because he felt bound to do so, in view of the defendant’s failure to deny the allegations contained in the complaint as to the value of the property. At the outset of the case, however, the defendant made a motion to amend its answer, so as to put in issue the allegations of the plaintiff’s complaint as to value. This motion was denied, upon the ground that it was made too late. In making this ruling, we think the court below erred. That the proposed amendment was in furtherance of justice appears from the opinion which the court expressed in disposing of the case. Section 166 of the Municipal Court Act (Laws 1902, c. 580) clothed the court with ample power to allow the amendment which the defendant proposed. If the plaintiff was not ready to proceed with the case, in the event of the amendment having been allowed, the court should have granted! an adjournment.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event. All concur.

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SEABURY, J.

The plaintiff has recovered a judgment for the al-

leged value of a gas stove and other articles of personal property, which he claims he delivered to the defendant’s agent at Green Cove Springs, Fla., to be transported to J. Kalin in New York City. The evidence in the case as to what articles were actually delivered to the defendant, and their value is unsatisfactory. The learned court below stated that he rendered judgment for the plaintiff reluctantly, and only because he felt bound to do so, in view of the defendant’s failure to deny the allegations contained in the complaint as to the value of the property. At the outset of the case, however, the defendant made a motion to amend its answer, so as to put in issue the allegations of the plaintiff’s complaint as to value. This motion was denied, upon the ground that it was made too late. In making this ruling, we think the court below erred. That the proposed amendment was in furtherance of justice appears from the opinion which the court expressed in disposing of the case. Section 166 of the Municipal Court Act (Laws 1902, c. 580) clothed the court with ample power to allow the amendment which the defendant proposed. If the plaintiff was not ready to proceed with the case, in the event of the amendment having been allowed, the court should have granted! an adjournment.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

135 N.Y.S. 597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feintuch-v-atlantic-coast-line-railroad-nyappterm-1912.