Griffel v. Belfer

Appellate Division of the Supreme Court of New York

Griffel v. Belfer

20 A.D.2d 890, 248 N.Y.S.2d 940, 1964 N.Y. App. Div. LEXIS 3905

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

DecidedApril 30, 1964

StatusPublished

Cited by1 cases

This text of 20 A.D.2d 890 (Griffel v. Belfer) 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

Griffel v. Belfer, 20 A.D.2d 890, 248 N.Y.S.2d 940, 1964 N.Y. App. Div. LEXIS 3905 (N.Y. Ct. App. 1964).

Pincite

Opinion

Order, entered on March 3, 1964, granting plaintiffs’ motion for leave to serve an [891]*891amended complaint for the purpose of adding a cause of action in rescission to a cause of action in fraud for damages, unanimously affirmed, without costs to any party, without prejudice to defendant to interpose in his answer a defense based upon laches, or any other defense in bar or abatement. There is no doubt that plaintiffs’ delayed election to rescind raises serious questions on the timeliness of the election (see Soviero Bros. Contr. Corp. v. City of New York, 286 App. Div. 435, 439-440, affd. 2 N Y 2d 924; Restatement, Contracts, §483, Comments and Illustrations 1, 2; 6 N. Y. Jur., Cancellation of Instruments, § 21). But these questions, because they involve mixed issues of law and fact, are best reserved for the trial. Defendant may have other defenses too, but these should not be passed upon on the motion to amend the pleadings, unless their applicability is clear (Tripp, A Guide to Motion Practice [rev. ed.], § 37, par. 6; id. 1955-1962 cum. supp., p. 70; 3 Weinstein-Korn-Miller, N. Y. Civ. Prae., par. 3025.14). Concur — Botein, P. J., Breitel, Yalente, Stevens and Eager, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, entered on March 3, 1964, granting plaintiffs’ motion for leave to serve an [891]*891amended complaint for the purpose of adding a cause of action in rescission to a cause of action in fraud for damages, unanimously affirmed, without costs to any party, without prejudice to defendant to interpose in his answer a defense based upon laches, or any other defense in bar or abatement. There is no doubt that plaintiffs’ delayed election to rescind raises serious questions on the timeliness of the election (see Soviero Bros. Contr. Corp. v. City of New York, 286 App. Div. 435, 439-440, affd. 2 N Y 2d 924; Restatement, Contracts, §483, Comments and Illustrations 1, 2; 6 N. Y. Jur., Cancellation of Instruments, § 21). But these questions, because they involve mixed issues of law and fact, are best reserved for the trial. Defendant may have other defenses too, but these should not be passed upon on the motion to amend the pleadings, unless their applicability is clear (Tripp, A Guide to Motion Practice [rev. ed.], § 37, par. 6; id. 1955-1962 cum. supp., p. 70; 3 Weinstein-Korn-Miller, N. Y. Civ. Prae., par. 3025.14). Concur — Botein, P. J., Breitel, Yalente, Stevens and Eager, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

20 A.D.2d 890, 248 N.Y.S.2d 940, 1964 N.Y. App. Div. LEXIS 3905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffel-v-belfer-nyappdiv-1964.

Opinion

Related

Cite This Page — Counsel Stack