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Blumenthal v. Katz

Supreme Court, Appellate Term
Dec 1, 1911
74 Misc. 456 (N.Y. App. Term 1911)

Opinion

December, 1911.

Barnett E. Kopelman, for appellants.

Max Silverstein, for respondent.


The defendants were sued as copartners, the alleged cause of action being for goods sold and delivered. The answer contained a general denial and also set up a counterclaim for commissions alleged to have been earned by one of the defendants under an employment by the plaintiff. When the case was called for trial, the defendants conceded the plaintiff's claim, whereupon the plaintiff moved for judgment upon the ground that the counterclaim as set up was in favor of one of the defendants alone. Thereupon the defendants' counsel moved to amend the answer so as to make the counterclaim in favor of both defendants. This amendment the court refused to allow and granted judgment in favor of the plaintiff.

The counterclaim as set up in the answer was not available as such. Hunter v. Booth, 84 A.D. 585. The proposed amendment, however, should have been allowed. The amendment would aid substantial justice and enable the rights of the parties to be determined in one action.

What testimony may be offered to sustain the counterclaim has no place in determining whether or not such a pleading should be interposed.

Judgment reversed, with ten dollars costs to appellant to abide the event, and a new trial ordered.

LEHMAN and PENDLETON, JJ., concur.

Judgment reversed, with ten dollars costs to appellant to abide event, and new trial ordered.


Summaries of

Blumenthal v. Katz

Supreme Court, Appellate Term
Dec 1, 1911
74 Misc. 456 (N.Y. App. Term 1911)
Case details for

Blumenthal v. Katz

Case Details

Full title:JOSEPH BLUMENTHAL, Respondent, v . LOUIS KATZ and BEREL KATZ, Appellants

Court:Supreme Court, Appellate Term

Date published: Dec 1, 1911

Citations

74 Misc. 456 (N.Y. App. Term 1911)
132 N.Y.S. 314