Reno v. Millspaugh

New York Supreme Court

Reno v. Millspaugh

21 N.Y. Sup. Ct. 229

DecidedMay 15, 1878

StatusPublished

This text of 21 N.Y. Sup. Ct. 229 (Reno v. Millspaugh) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reno v. Millspaugh, 21 N.Y. Sup. Ct. 229 (N.Y. Super. Ct. 1878).

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Opinion

Per Curiam:

The law seems to give to defendant on appeal in cases like this a new trial if desired in the County Court. But we do not think it was intended that the issues joined in the court below should be affected by the introduction of entirely new and affirmative defenses. Such a power would work very great injustice to the plaintiff in many cases, by reason of the provisions under which he might be charged with the costs in the.event of the recovery being-reduced.

We think, tnerefore, that the power to amend was not intended to be so exercised as to allow an entire change of the issues joined in the court below, but only to allow such changes of the pleadings as to enable the parties fully and fairly to try such issues.

If, however, we are in error on this point we still think the allowance of such radical amendments, as the introduction for the-first time in the County Court of new and affirmative defenses, such as payment, set-off and counterclaim, would not be just and proper, and ought -not in any case to be allowed. The consequences of such a practice would be mischievous in the extreme, and would render the bringing actions injustices’ courts a dangerous and often a serious experiment on the part of the plaintiff. The granting of a new trial in the Comity Court is bad enough-in itself. But if the issue joined in the justice’s court may be wholly changed by the introduction of other and new defenses, the plaintiff’s condition would become intolerable and great wrongs be perpetrated under the forms of law.

[231]*231The order of the County Court appealed from should be reversed with $10 costs and printing disbursements, and the motion to amend denied.

Present — Learned, P. J., Boardman and Tappan, JJ.

Order reversed with $10 costs and printing disbursements, and motion denied.

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Per Curiam:

The law seems to give to defendant on appeal in cases like this a new trial if desired in the County Court. But we do not think it was intended that the issues joined in the court below should be affected by the introduction of entirely new and affirmative defenses. Such a power would work very great injustice to the plaintiff in many cases, by reason of the provisions under which he might be charged with the costs in the.event of the recovery being-reduced.

We think, tnerefore, that the power to amend was not intended to be so exercised as to allow an entire change of the issues joined in the court below, but only to allow such changes of the pleadings as to enable the parties fully and fairly to try such issues.

If, however, we are in error on this point we still think the allowance of such radical amendments, as the introduction for the-first time in the County Court of new and affirmative defenses, such as payment, set-off and counterclaim, would not be just and proper, and ought -not in any case to be allowed. The consequences of such a practice would be mischievous in the extreme, and would render the bringing actions injustices’ courts a dangerous and often a serious experiment on the part of the plaintiff. The granting of a new trial in the Comity Court is bad enough-in itself. But if the issue joined in the justice’s court may be wholly changed by the introduction of other and new defenses, the plaintiff’s condition would become intolerable and great wrongs be perpetrated under the forms of law.

[231]*231The order of the County Court appealed from should be reversed with $10 costs and printing disbursements, and the motion to amend denied.

Present — Learned, P. J., Boardman and Tappan, JJ.

Order reversed with $10 costs and printing disbursements, and motion denied.

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Bluebook (online)

21 N.Y. Sup. Ct. 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reno-v-millspaugh-nysupct-1878.