Koven Steel Swimming Pools, Inc. v. Horowitz

4 A.D.2d 981, 167 N.Y.S.2d 830, 1957 N.Y. App. Div. LEXIS 3920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1957
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Special Term, granting leave to the defendants to serve an amended answer. The action was brought to recover upon a trade acceptance given by the defendants for the balance of the purchase price of a swimming pool installed by the plaintiff upon the defendants’ premises. The defendants interposed an answer containing a counterclaim seeking recovery of damages from the plaintiff. During the trial, the defendants sought to introduce evidence which was at variance with the written agreement between the parties. Upon the objection of the plaintiff’s counsel, the trial court excluded the evidence. The defendants thereupon moved to amend their answer to plead a counterclaim for reformation of the contract. The trial court denied the motion without prejudice to the defendants’ moving to amend at Special Term. A motion was accordingly made at Special Term and this appeal is taken from the order granting that motion. As the Special Term indicated in its memorandum, the granting of the motion did not in any way pass upon the validity of the proposed claim for reformation or the admissibility of the parol evidence which the defendants propose to introduce in support thereof. We express no opinion upon the questions discussed in the briefs of the parties as to the merits of the defendants’ claim. These questions will be passed upon by the trial court de novo, without giving any weight to the fact that the defendants had been given leave to set up the claim for reformation by the Special Term. Order unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.