Opinion
January, 1909.
Truax Watson, for respondent.
H. Lionel Kringel, for appellants.
This is an appeal from a judgment rendered by the court without a jury in favor of plaintiff for $401.60 balance due for trunks sold and delivered by plaintiff to defendants. The answer pleaded payment. On the trial defendants moved to amend the answer so as to allege that plaintiff was a foreign corporation doing business within the State of New York, and as such foreign corporation had failed to comply with section 15 of the General Corporation Law. The complaint and answer both alleged that the plaintiff is a foreign corporation, but not that plaintiff was doing business in the State of New York. The motion to amend was denied, and an exception taken.
The defense set up in the proposed amendment, if established, would have absolutely defeated plaintiff's right of recovery. Plaintiff could not plead surprise, as the facts relating to such defense were entirely in the possession of the plaintiff.
The motion should have been granted, and the refusal to do so was reversible error. Miles v. Kuttner, 59 Misc. 224.
GILDERSLEEVE and BISCHOFF, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.