Roman Ornamental Plastering Corp. v. Fidelity & Deposit Co.

Appellate Division of the Supreme Court of New York

Roman Ornamental Plastering Corp. v. Fidelity & Deposit Co.

239 A.D. 848

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

DecidedMay 15, 1933

StatusPublished

This text of 239 A.D. 848 (Roman Ornamental Plastering Corp. v. Fidelity & Deposit Co.) 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

Roman Ornamental Plastering Corp. v. Fidelity & Deposit Co., 239 A.D. 848 (N.Y. Ct. App. 1933).

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Opinion

Order granting motion to strike out defendant’s answer as sham, with the judgment thereon, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order denying resettlement of the first order reversed on the law in so far as it denies the defendant the right to serve an amended answer, without costs, with leave to the defendant to serve an amended answer within ten days after the entry of this order if so advised, on payment of ten dollars costs. The answer, though defective, was sufficient in view of the allegations of the complaint. In any event the defendant should have been permitted to serve an amended answer, it appearing that it had a meritorious defense. (Rules of Civil Practice, rule 104.) It was proper for the defendant to use affidavits on the motion to show that the answer was not in fact sham and that the defendant had a substantial defense on the merits. (Fleischer v. Terker, 259 N. Y. 60, 62; Flushing Manor, Inc., v. Hotkin, 234 App. Div. 716.) Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.

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Order granting motion to strike out defendant’s answer as sham, with the judgment thereon, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order denying resettlement of the first order reversed on the law in so far as it denies the defendant the right to serve an amended answer, without costs, with leave to the defendant to serve an amended answer within ten days after the entry of this order if so advised, on payment of ten dollars costs. The answer, though defective, was sufficient in view of the allegations of the complaint. In any event the defendant should have been permitted to serve an amended answer, it appearing that it had a meritorious defense. (Rules of Civil Practice, rule 104.) It was proper for the defendant to use affidavits on the motion to show that the answer was not in fact sham and that the defendant had a substantial defense on the merits. (Fleischer v. Terker, 259 N. Y. 60, 62; Flushing Manor, Inc., v. Hotkin, 234 App. Div. 716.) Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.

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Bluebook (online)

239 A.D. 848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roman-ornamental-plastering-corp-v-fidelity-deposit-co-nyappdiv-1933.

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