Martin v. Katz

Appellate Division of the Supreme Court of New York

Martin v. Katz

15 A.D.2d 767, 224 N.Y.S.2d 568, 1962 N.Y. App. Div. LEXIS 11350

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

DecidedFebruary 21, 1962

StatusPublished

Cited by2 cases

This text of 15 A.D.2d 767 (Martin v. Katz) 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

Martin v. Katz, 15 A.D.2d 767, 224 N.Y.S.2d 568, 1962 N.Y. App. Div. LEXIS 11350 (N.Y. Ct. App. 1962).

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Opinion

It is well settled that the courts should adopt a liberal policy in allowing amendments to pleadings at any time before the trial to the end that the parties may have a full and just determination of the action upon the merits (see 4 Carmody-Wait, New York Practice, § 26, p. 568; Shuffman v. Shuffman, 6 A D 2d 1030), and that, as a general proposition, questions relating to the sufficiency and the merits of the defenses proposed to be added by amendment should be reserved for determination on a proper motion or upon the trial. (See 4 Carmody-Wait, New York Practice, § 25, p. 566; also Bendan Holding Corp. v. Rodner, 245 App. Div. 723; Cohen v. Dana, 273 App. Div. 1017; Anderson v. New York Cent. R. R. Co., 284 App. Div. 64, 65 and cases cited.) Therefore, under the circumstances here, it was an abuse of discretion for Special Term to unconditionally deny the defendant’s motion. The circumstances are such, however, that terms by way of payment of costs to date, as aforesaid, should be imposed as a condition of allowing the service of the amended pleading (see 4 Carmody-Wait, New York Practice, §§ 27-28, pp. 571-575; cf. Minasy v. Foster Wheeler Corp., 15 A D 2d 759). Settle order on notice. Concur—■ Botein, P. J., Breitel, Valente, McNally and Eager, JJ.

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It is well settled that the courts should adopt a liberal policy in allowing amendments to pleadings at any time before the trial to the end that the parties may have a full and just determination of the action upon the merits (see 4 Carmody-Wait, New York Practice, § 26, p. 568; Shuffman v. Shuffman, 6 A D 2d 1030), and that, as a general proposition, questions relating to the sufficiency and the merits of the defenses proposed to be added by amendment should be reserved for determination on a proper motion or upon the trial. (See 4 Carmody-Wait, New York Practice, § 25, p. 566; also Bendan Holding Corp. v. Rodner, 245 App. Div. 723; Cohen v. Dana, 273 App. Div. 1017; Anderson v. New York Cent. R. R. Co., 284 App. Div. 64, 65 and cases cited.) Therefore, under the circumstances here, it was an abuse of discretion for Special Term to unconditionally deny the defendant’s motion. The circumstances are such, however, that terms by way of payment of costs to date, as aforesaid, should be imposed as a condition of allowing the service of the amended pleading (see 4 Carmody-Wait, New York Practice, §§ 27-28, pp. 571-575; cf. Minasy v. Foster Wheeler Corp., 15 A D 2d 759). Settle order on notice. Concur—■ Botein, P. J., Breitel, Valente, McNally and Eager, JJ.

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Bluebook (online)

15 A.D.2d 767, 224 N.Y.S.2d 568, 1962 N.Y. App. Div. LEXIS 11350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-katz-nyappdiv-1962.

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