Parry v. Marlin Firearms Co.

281 A.D. 910, 120 N.Y.S.2d 97, 1953 N.Y. App. Div. LEXIS 3749

Opinion

In an action to recover damages for injuries sustained in the discharge of a rifle claimed to have been defectively manufactured by defendant, plaintiff moved to serve a second amended complaint and an amended bill of particulars. The order entered permitted one item of the bill of particulars to be amended, and otherwise denied the motion. Plaintiff appeals from the order insofar as it denied the motion. Order insofar as appealed from reversed, without costs, and motion granted, without costs. In view of the operation of the rifle which is shown to have been inspected by defendant’s experts and the fact that the attorney who prepared the amended complaint and was present at that inspection has died, in the absence of prejudice to the defendant, which can further examine the plaintiff before trial, discretion was improperly exercised insofar as the motion was denied. (Cf. Cardin v. Balpern, 247 App. Div. 791; 3 Carmody-Wait Cyclopedia of New York Practice, p. 85.) Plaintiff has verified the proposed pleading and bill of particulars. Whether the rifle was in the same condition before the accident as it was on the inspection, by defendant, and whether plaintiff is worthy of belief, are matters for determination at a trial. Carswell, Acting P. J., Wenzel, MacCrate, Schmidt and Beldoek, JJ., concur.