Newman v. Goldberg

Full title: ROSE NEWMAN, as Administratrix, etc., of EMANUEL NEWMAN, Deceased…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 19, 1937

250 App. Div. 431 (N.Y. App. Div. 1937)

294 N.Y.S. 211

Opinion

March 19, 1937.

Appeal from Supreme Court of Kings County.

Jean A. Keller, for the appellant.

Harry Krokow, for the respondent.

PER CURIAM.

The action was brought against defendant Goldberg to recover damages for the death of plaintiff's intestate as the result of a collision between an automobile driven by Goldberg and one driven by the intestate. Defendant Aaron Bring Chevrolet Co., Inc., was brought in and made a party defendant upon the claim that it was the owner of the automobile operated by Goldberg and that he operated it with the company's knowledge and consent. The defendant company interposed an answer, which, later, it moved to amend. From the order denying its motion this appeal is taken.

In the exercise of sound discretion, the proposed amendment should have been allowed. The question of the alleged insufficiency of the defense should not have been decided on the motion for leave to serve an amended answer. If that pleading be served, its sufficiency may be tested upon a motion directed to the pleading or made at the trial. ( Bendan Holding Corporation v. Rodner, 245 App. Div. 723; Goldstein v. Schleifer, 209 id. 899; Stroock Co., Inc., v. Lichtenthal, Inc., 225 id. 732; State Bank v. Keshin, Blitstein Co., 165 id. 974; Partridge v. Fidelity Casualty Co., 213 id. 8.)

The order should be reversed on the law and the facts, with ten dollars costs and disbursements to appellant, and the motion granted upon payment of twenty dollars to respondent within ten days from the entry of the order of this court; the amendment to be without prejudice to the notice of trial served, the note of issue filed, or the position of the cause upon the calendar.

LAZANSKY, P.J., JOHNSTON, ADEL, TAYLOR and CLOSE, JJ., concur.

Order denying motion for leave to serve an amended answer reversed on the law and the facts, with ten dollars costs and disbursements to appellant, and motion granted upon payment of twenty dollars to respondent within ten days from the entry of the order of this court; the amendment to be without prejudice to the notice of trial served, the note of issue filed, or the position of the cause upon the calendar; the amended answer to be served within ten days from the entry of the order hereon.