Westinghouse, Church, Kerr & Co. v. Remington Salt Co.

Appellate Division of the Supreme Court of New York

Westinghouse, Church, Kerr & Co. v. Remington Salt Co.

89 A.D. 126, 85 N.Y.S. 432

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

DecidedDecember 15, 1903

StatusPublished

This text of 89 A.D. 126 (Westinghouse, Church, Kerr & Co. v. Remington Salt 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

Westinghouse, Church, Kerr & Co. v. Remington Salt Co., 89 A.D. 126, 85 N.Y.S. 432 (N.Y. Ct. App. 1903).

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Opinion

Chester, J.:

It does not appear that the sufficiency of the moving papers was questioned at the Special Term on the ground that the affidavit was made by the attorney and not by an officer of the defendant. If it had been and . the motion had been denied on that ground the court would undoubtedly have granted leave to renew upon proper papers. More than this, the affidavit which the attorney made shows that he had personal knowledge on the question of laches, which, we think, was excused, and the proposed amended answer was verified by an officer of the defendant.

.We do not think upon this appeal we should consider the sufficiency of the counterclaim contained in the amended answer, nor [127]*127undertake a discussion of the merits of the controversy. These can better be disposed of on the trial than upon the affidavits appearing in the record.

The granting of the order allowing the amendment rested in the sound discretion of the court at Special Term, and unless there was a clear abuse of that discretion it should be affirmed. (Sun Printing & Publishing Assn. v. Abbey Salt Co., 62 App. Div. 54,) No such abuse appears here.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

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Chester, J.:

It does not appear that the sufficiency of the moving papers was questioned at the Special Term on the ground that the affidavit was made by the attorney and not by an officer of the defendant. If it had been and . the motion had been denied on that ground the court would undoubtedly have granted leave to renew upon proper papers. More than this, the affidavit which the attorney made shows that he had personal knowledge on the question of laches, which, we think, was excused, and the proposed amended answer was verified by an officer of the defendant.

.We do not think upon this appeal we should consider the sufficiency of the counterclaim contained in the amended answer, nor [127]*127undertake a discussion of the merits of the controversy. These can better be disposed of on the trial than upon the affidavits appearing in the record.

The granting of the order allowing the amendment rested in the sound discretion of the court at Special Term, and unless there was a clear abuse of that discretion it should be affirmed. (Sun Printing & Publishing Assn. v. Abbey Salt Co., 62 App. Div. 54,) No such abuse appears here.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

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89 A.D. 126, 85 N.Y.S. 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westinghouse-church-kerr-co-v-remington-salt-co-nyappdiv-1903.

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