Hoffman v. New York, Lake Erie & Western R. R.

The Superior Court of New York City

Hoffman v. New York, Lake Erie & Western R. R.

18 Jones & S. 403

CourtThe Superior Court of New York City

DecidedJune 16, 1884

StatusPublished

This text of 18 Jones & S. 403 (Hoffman v. New York, Lake Erie & Western R. R.) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hoffman v. New York, Lake Erie & Western R. R., 18 Jones & S. 403 (N.Y. Super. Ct. 1884).

Pincite

Opinion

By the Court.—Truax, J.

The motion for judgment on the pleadings, made by the plaintiff at the commencement of the trial, should have been granted. The answer does not contain the general or specific denial of the allegations of the complaint required by section 500 of the Code of Civil Procedure. The motion was made in due season, and the ruling must be tested by the answer as it then was, and not by the answer as it would have been if it had been changed by an amendment that was not asked for or made (Tooker v. Arnoux, 76 N. Y. 397). As the pleadings then stood, and now stand the plaintiff was entitled to judgment.

But the evidence offered by the plaintiff on the trial does not entitle him to a judgment (Elmore v. Sands, 54 N. Y. 512 ; Townsend v. Cant, 56 Id. 295). He failed to prove a cause of action, and as the court at trial term, could have amended the answer so that it would have contained what the pleader intended it to contain—a general denial. We think that in the interests of justice the defendant should be allowed to amend its answer, nunc pro tunc, [406]*406by striking out the words “ qualified or explained ” in the first paragraph. This privilege is given the defendant on its stipulating to satisfy the judgment heretofore entered against the plaintiff. On filing this stipulation the judgment will be affirmed without costs to either party. If the defendant do not give the stipulation above mentioned the judgment will be reversed with costs to the appellant to abide the event.

Ingraham, J., concurred.

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

By the Court.—Truax, J.

The motion for judgment on the pleadings, made by the plaintiff at the commencement of the trial, should have been granted. The answer does not contain the general or specific denial of the allegations of the complaint required by section 500 of the Code of Civil Procedure. The motion was made in due season, and the ruling must be tested by the answer as it then was, and not by the answer as it would have been if it had been changed by an amendment that was not asked for or made (Tooker v. Arnoux, 76 N. Y. 397). As the pleadings then stood, and now stand the plaintiff was entitled to judgment.

But the evidence offered by the plaintiff on the trial does not entitle him to a judgment (Elmore v. Sands, 54 N. Y. 512 ; Townsend v. Cant, 56 Id. 295). He failed to prove a cause of action, and as the court at trial term, could have amended the answer so that it would have contained what the pleader intended it to contain—a general denial. We think that in the interests of justice the defendant should be allowed to amend its answer, nunc pro tunc, [406]*406by striking out the words “ qualified or explained ” in the first paragraph. This privilege is given the defendant on its stipulating to satisfy the judgment heretofore entered against the plaintiff. On filing this stipulation the judgment will be affirmed without costs to either party. If the defendant do not give the stipulation above mentioned the judgment will be reversed with costs to the appellant to abide the event.

Ingraham, J., concurred.

Cite This Page — Counsel Stack

Bluebook (online)

18 Jones & S. 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-v-new-york-lake-erie-western-r-r-nysuperctnyc-1884.

Opinion

Related

Cite This Page — Counsel Stack