Limmat Corp. v. Dorosin Distributing Corp.

13 A.D.2d 471, 212 N.Y.S.2d 473, 1961 N.Y. App. Div. LEXIS 12054

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1961
• Status: Published

Opinion

Order, entered on June 9, 1960, granting plaintiff’s motion, pursuant to subdivision 6 of rule 109 of the Rules of Civil Practice, to strike out all of the defenses of defendant, unanimously affirmed, with $20 costs and disbursements to the respondent. No opinion. Order, entered on August 15, 1960, denying defendant’s motion for leave to serve a further amended answer, unanimously modified, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to the respondent, to the extent of granting defendant leave to apply anew for such relief, upon complying with the following conditions. Should defendant be advised to renew its application for leave to serve a further amended answer, it must first pay to plaintiff all costs to date, the costs on this appeal and the companion appeal, and it must furnish a surety company bond in the full amount sued for herein, all within 10 days from the date of entry of the order herein. On the proposed amended answer and defendant’s affidavits it is impossible to determine whether or not defendant concedes a balance due to plaintiff of $7,153.41, or whether it contends that this balance has been expunged by the payment of $9,418.22 alleged in the proposed amended answer. Instead of moving upon garbled, conclusory allegations, as herein, defendant should set forth clearly the amount it claims it owed for the merchandise sold and delivered to it by plaintiff, the credits due defendant for its sales to plaintiff and the payments made to plaintiff. The shipments made and received, their dates and the amounts billed therefor, and the dates and amounts of the actual payments made should be recited as fully as possible. Settle order on notice. Concur — Botein, P. J., Breitel, Rabin, Eager and Steuer, JJ.