Opinion
February 21, 1962
Order, entered on September 6, 1961, unanimously reversed on the law and the facts, and in the exercise of discretion, with $50 costs and disbursements to be paid by defendant-appellant, and motion by defendant for leave to serve amended answer granted, upon condition that defendant pay to plaintiff-respondent the costs of this appeal as aforesaid and a full bill of taxable costs to date, the issue to remain undisturbed. It is well settled that the courts should adopt a liberal policy in allowing amendments to pleadings at any time before the trial to the end that the parties may have a full and just determination of the action upon the merits (see 4 Carmody-Wait, New York Practice, § 26, p. 568; Shuffman v. Shuffman, 6 A.D.2d 1030), and that, as a general proposition, questions relating to the sufficiency and the merits of the defenses proposed to be added by amendment should be reserved for determination on a proper motion or upon the trial. (See 4 Carmody-Wait, New York Practice, § 25, p. 566; also Bendan Holding Corp. v. Rodner, 245 App. Div. 723; Cohen v. Dana, 273 App. Div. 1017; Anderson v. New York Cent. R.R. Co., 284 App. Div. 64, 65 and cases cited.) Therefore, under the circumstances here, it was an abuse of discretion for Special Term to unconditionally deny the defendant's motion. The circumstances are such, however, that terms by way of payment of costs to date, as aforesaid, should be imposed as a condition of allowing the service of the amended pleading (see 4 Carmody-Wait, New York Practice, §§ 27-28, pp. 571-575; cf. Minasy v. Foster Wheeler Corp., 15 A.D.2d 759). Settle order on notice.
Concur — Botein, P.J., Breitel, Valente, McNally and Eager, JJ.