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Steiger Trunk and Bag Co. v. Wharncliffe

Supreme Court, Appellate Term
Jan 1, 1909
62 Misc. 14 (N.Y. App. Term 1909)

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.


Summaries of

Steiger Trunk and Bag Co. v. Wharncliffe

Supreme Court, Appellate Term
Jan 1, 1909
62 Misc. 14 (N.Y. App. Term 1909)
Case details for

Steiger Trunk and Bag Co. v. Wharncliffe

Case Details

Full title:THE P. STEIGER TRUNK AND BAG COMPANY, Respondent, v . HENRY H. WHARNCLIFFE…

Court:Supreme Court, Appellate Term

Date published: Jan 1, 1909

Citations

62 Misc. 14 (N.Y. App. Term 1909)
114 N.Y.S. 462