Graphic Arts Mutual Insurance v. Monello

Appellate Terms of the Supreme Court of New York

Graphic Arts Mutual Insurance v. Monello

44 Misc. 2d 588, 254 N.Y.S.2d 351, 1964 N.Y. Misc. LEXIS 1326

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 5, 1964

StatusPublished

Cited by2 cases

This text of 44 Misc. 2d 588 (Graphic Arts Mutual Insurance v. Monello) 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

Graphic Arts Mutual Insurance v. Monello, 44 Misc. 2d 588, 254 N.Y.S.2d 351, 1964 N.Y. Misc. LEXIS 1326 (N.Y. Ct. App. 1964).

Pincite

Opinion

Per Curiam.

Plaintiff did not make out the cause of action alleged in the complaint. On the other hand, its motion to amend the complaint to allege causes of action for unjust enrichment and money had and received should have been granted. The motion having been denied, the defendant was not on notice that he was called upon to defend a cause of action for unjust enrichment; had the motion been granted, the defendant might have offered evidence instead of resting. In the interest of justice, we therefore remand the case to the court below for a new trial. The judgment should be reversed and new trial ordered, with $30 costs to appellant to abide the event.

Concur — Hofstadter, J. P., Tilzer and Gold, JJ.

Judgment reversed, etc.

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Per Curiam.

Plaintiff did not make out the cause of action alleged in the complaint. On the other hand, its motion to amend the complaint to allege causes of action for unjust enrichment and money had and received should have been granted. The motion having been denied, the defendant was not on notice that he was called upon to defend a cause of action for unjust enrichment; had the motion been granted, the defendant might have offered evidence instead of resting. In the interest of justice, we therefore remand the case to the court below for a new trial. The judgment should be reversed and new trial ordered, with $30 costs to appellant to abide the event.

Concur — Hofstadter, J. P., Tilzer and Gold, JJ.

Judgment reversed, etc.

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Bluebook (online)

44 Misc. 2d 588, 254 N.Y.S.2d 351, 1964 N.Y. Misc. LEXIS 1326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graphic-arts-mutual-insurance-v-monello-nyappterm-1964.

Opinion

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