Minasy v. Foster Wheeler Corp.

Appellate Division of the Supreme Court of New York

Minasy v. Foster Wheeler Corp.

15 A.D.2d 759, 224 N.Y.S.2d 622, 1962 N.Y. App. Div. LEXIS 11380

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

DecidedFebruary 20, 1962

StatusPublished

Cited by2 cases

This text of 15 A.D.2d 759 (Minasy v. Foster Wheeler Corp.) 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

Minasy v. Foster Wheeler Corp., 15 A.D.2d 759, 224 N.Y.S.2d 622, 1962 N.Y. App. Div. LEXIS 11380 (N.Y. Ct. App. 1962).

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Opinion

“The general policy of the law is to permit amendments at any time before * * *' trial 3 * where no prejudice will result.” (4 Carmody-Wait, New York Practice, § 26, p. 568.) Under the circumstances here, defendant’s alleged laches should not defeat the application to amend his answer to set forth the proposed defense of the Statute of Frauds, the plaintiff at all times being fully aware of the facts constituting the alleged basis of such defense and no prejudice to him being shown. (See 4 Carmody-Wait, New York [760]*760Practice, § 26, pp. 568-571; also Mitchell v. A. A. Truck Renting Corp., 9 A D 2d 682; Dodge v. Richmond, 6 A D 2d 1029; Lehman v. Hartke, 286 App. Div. 661; Karp v. Antelman, 285 App. Div. 955; Muller v. City of Philadelphia, 113 App. Div. 92.) Terms, by way of payment of costs to date, should, however, be imposed as a condition of allowing the amendment (see 4 Carmody-Wait, New York Practice, §§ 27-28, pp. 571-575). We do not pass upon the sufficiency of the proposed defense. (See 4 Carmody-Wait, New York Practice, § 25, p. 566; also Lehman v. Hartke, supra; 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.) Settle order on notice. 'Concur — McNally, J. P., Stevens, Eager, Steuer and Bastow, JJ.

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“The general policy of the law is to permit amendments at any time before * * *' trial 3 * where no prejudice will result.” (4 Carmody-Wait, New York Practice, § 26, p. 568.) Under the circumstances here, defendant’s alleged laches should not defeat the application to amend his answer to set forth the proposed defense of the Statute of Frauds, the plaintiff at all times being fully aware of the facts constituting the alleged basis of such defense and no prejudice to him being shown. (See 4 Carmody-Wait, New York [760]*760Practice, § 26, pp. 568-571; also Mitchell v. A. A. Truck Renting Corp., 9 A D 2d 682; Dodge v. Richmond, 6 A D 2d 1029; Lehman v. Hartke, 286 App. Div. 661; Karp v. Antelman, 285 App. Div. 955; Muller v. City of Philadelphia, 113 App. Div. 92.) Terms, by way of payment of costs to date, should, however, be imposed as a condition of allowing the amendment (see 4 Carmody-Wait, New York Practice, §§ 27-28, pp. 571-575). We do not pass upon the sufficiency of the proposed defense. (See 4 Carmody-Wait, New York Practice, § 25, p. 566; also Lehman v. Hartke, supra; 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.) Settle order on notice. 'Concur — McNally, J. P., Stevens, Eager, Steuer and Bastow, JJ.

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Bluebook (online)

15 A.D.2d 759, 224 N.Y.S.2d 622, 1962 N.Y. App. Div. LEXIS 11380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minasy-v-foster-wheeler-corp-nyappdiv-1962.

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