Opinion
February 2, 1965
Order, entered on December 2, 1964, denying the motion of defendant Bonwit Construction Co., Inc., for leave to amend its counterclaim by increasing the ad damnum clause from $103,633.66 to $189,784.93, unanimously modified, on the law and on the facts and in the exercise of discretion by granting defendant's motion to increase the ad damnum clause in its counterclaim on condition that the said defendant Bonwit Construction Co., Inc., pay a full bill of costs in the action to date and $30 costs and disbursements of this appeal to plaintiff-respondent within 10 days after taxing of the bill of costs and, as so modified, affirmed. The defendant served its bill of particulars on plaintiff in September, 1961 and specifically set forth its claims of damage in the total amount of $189,784.93, the amount presently sought to be set forth in the ad damnum clause in its counterclaim by the proposed amendment. Although defendant may have delayed in making formal application for change of the ad damnum clause, said delay was not prejudicial to the rights of the plaintiff.
Concur — Breitel, J.P., Rabin, Valente, Stevens and Staley, JJ.