P. Steiger Trunk & Bag Co. v. Wharncliffe

Appellate Terms of the Supreme Court of New York

P. Steiger Trunk & Bag Co. v. Wharncliffe

62 Misc. 14, 114 N.Y.S. 462

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 15, 1909

StatusPublished

This text of 62 Misc. 14 (P. Steiger Trunk & Bag Co. v. Wharncliffe) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

P. Steiger Trunk & Bag Co. v. Wharncliffe, 62 Misc. 14, 114 N.Y.S. 462 (N.Y. Ct. App. 1909).

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Opinion

Guy, J.

This is an appeal from a judgment rendered by the court without a jury in favor of plaintiff for $401.60 balance due for trunks sold and delivered by plaintiff to defendants. The answer pleaded payment. On the trial defendants moved to amend the answer so as to allege that plaintiff was a foreign corporation doing business within the State of Hew York, and as such foreign corporation had failed to comply with section 15 of the General Corporation Law. The complaint and answer both alleged that the plaintiff is a foreign corporation, but not that plaintiff was doing business in the State of Hew York. The motion to amend was denied, and an exception taken.

The defense set up in the proposed amendment, if estab[15]*15listed, would ¡have absolutely defeated plaintiff’s right of recovery. Plaintiff could not plead surprise, as the facts relating to such defense were entirely in the possession of the plaintiff.

The motion should have been granted, and the refusal to do so was reversible error. Miles v. Kuttner, 59 Misc. Rep. 224.

Giedersleeve and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

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Guy, J.

This is an appeal from a judgment rendered by the court without a jury in favor of plaintiff for $401.60 balance due for trunks sold and delivered by plaintiff to defendants. The answer pleaded payment. On the trial defendants moved to amend the answer so as to allege that plaintiff was a foreign corporation doing business within the State of Hew York, and as such foreign corporation had failed to comply with section 15 of the General Corporation Law. The complaint and answer both alleged that the plaintiff is a foreign corporation, but not that plaintiff was doing business in the State of Hew York. The motion to amend was denied, and an exception taken.

The defense set up in the proposed amendment, if estab[15]*15listed, would ¡have absolutely defeated plaintiff’s right of recovery. Plaintiff could not plead surprise, as the facts relating to such defense were entirely in the possession of the plaintiff.

The motion should have been granted, and the refusal to do so was reversible error. Miles v. Kuttner, 59 Misc. Rep. 224.

Giedersleeve and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

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Bluebook (online)

62 Misc. 14, 114 N.Y.S. 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/p-steiger-trunk-bag-co-v-wharncliffe-nyappterm-1909.

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