Van Wickle v. Baron

5 A.D. 130, 39 N.Y.S. 85

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1896
• Status: Published

Opinion

Per Curiam :

There can be no doubt but the court had power to allow the amendments asked for. The motion must, therefore, have been denied as a matter of discretion, because not made promptly enough. No other valid reason could have been alleged for the exercise, of such discretion. No injury had been suffered by the defendant by reason of the delay. The action had been at issue for the last four years, and had not been tried because not yet reached upon the calendar. There seems to have been some disagreement by the different courts as to the necessity of alleging the facts sought to be inserted in the complaint in order to maintain the action. We think under the circumstances the amendments should have been allowed.

The order appealed from should, therefore, be reversed, with costs to the appellants, and the motion for leave to amend be granted, upon payment of ten dollars costs of motion and all costs and disbursements of the action after notice of trial.

Present — Barrett, Rumsey, Williams, Patterson and Ingraham, JJ.

Order reversed, with costs to appellants, and motion for leave to amend granted, upon payment of ten dollars costs of motion and all costs and disbursements of the action after notice of trial.