Salvage v. Hartley Silk Manufacturing Co.

153 A.D. 736, 138 N.Y.S. 800, 1912 N.Y. App. Div. LEXIS 9351

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 1912
• Status: Published

Opinion

Dowling, J.:

This action was brought to recover the value of certain yarn sold , and delivered by plaintiff to defendant. An answer was interposed wherein, after a general denial, a counterclaim was set up for damages claimed to have been sustained by the breach of a contract between defendant and one Sidney Thompson, on whose account the sales in question had been made by plaintiff. Plaintiff seeks to serve an amended complaint setting up as a second cause of action an account stated between himself and defendant, the amount whereof is exactly the same as that claimed under the first cause of action. We see no reason why the relief desired should not have been granted upon proper terms. Plaintiff could have discontinued his. pending action, upon payment of costs, and sued anew upon the cause of action he now seeks to introduce in his amended complaint. Ho greater hardship is entailed upon defendant by permitting the amendment than would have been caused by the course indicated. The fact that a witness has left defendant’s employ and it will take some time to locate him would be equally embarrassing in either event.

The order appealed from will be reversed, with ten dollars costs and disbursements to appellant, and the motion for leave to serve an amended complaint granted, on payment hy plaintiff to defendant of the taxable costs of the action down to the time of making such application.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted on terms stated in opinion. Order to be settled on notice.