Tomback & McPhee, Inc. v. Schlesinger

Appellate Terms of the Supreme Court of New York

Tomback & McPhee, Inc. v. Schlesinger

126 N.Y.S. 72

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 8, 1910

StatusPublished

This text of 126 N.Y.S. 72 (Tomback & McPhee, Inc. v. Schlesinger) 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

Tomback & McPhee, Inc. v. Schlesinger, 126 N.Y.S. 72 (N.Y. Ct. App. 1910).

Pincite

Opinion

GUY, J.

This action was brought to recover the value of plumbing work performed by plaintiff for defendant. The defendant interposed a general denial, and attempted in her answer to set up a counterclaim. During the course of the trial the defendant sought to establish the counterclaim set up in the answer. Certain testimony was offered, which, upon objection, was "excluded by the court. Defendant then asked leave to amend the answer, so far as related to the counterclaim. This motion was denied by the court.

Section 166 of the Municipal Court Act (Laws 1902, c. 580) provides :

“The court must upon application allow a pleading to be amended at any time, if substantial justice will be promoted thereby.”

The amendment in question was essential to enable defendant to properly establish her counterclaim. The refusal of the court to allow the amendment was, therefore, error prejudicial to the defendant.

The judgment should therefore be reversed, and a new trial, ordered, with costs to appellant to abide the event. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

GUY, J.

This action was brought to recover the value of plumbing work performed by plaintiff for defendant. The defendant interposed a general denial, and attempted in her answer to set up a counterclaim. During the course of the trial the defendant sought to establish the counterclaim set up in the answer. Certain testimony was offered, which, upon objection, was "excluded by the court. Defendant then asked leave to amend the answer, so far as related to the counterclaim. This motion was denied by the court.

Section 166 of the Municipal Court Act (Laws 1902, c. 580) provides :

“The court must upon application allow a pleading to be amended at any time, if substantial justice will be promoted thereby.”

The amendment in question was essential to enable defendant to properly establish her counterclaim. The refusal of the court to allow the amendment was, therefore, error prejudicial to the defendant.

The judgment should therefore be reversed, and a new trial, ordered, with costs to appellant to abide the event. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

126 N.Y.S. 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomback-mcphee-inc-v-schlesinger-nyappterm-1910.