Partridge v. Fidelity Casualty Co.

Full title: LILLIAN L. PARTRIDGE, Respondent, v. THE FIDELITY AND CASUALTY COMPANY OF…

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

Date published: May 6, 1925

213 App. Div. 8 (N.Y. App. Div. 1925)

209 N.Y.S. 502

Opinion

May 6, 1925.

Appeal from Supreme Court of Erie County.

Nadal, Jones Mowton [ Franklin R. Brown of counsel], for the appellant.

Charles W. Strong and Orlin J. Colburn [ Charles W. Strong of counsel], for the respondent.

PER CURIAM:

The defendant made a motion at Special Term for permission to serve an amended answer setting up as a new defense that the policy sued upon had expired by its terms before the plaintiff's intestate received the injury which the complaint alleges caused his death. The learned Special Term held that the defendant was not guilty of laches, but denied the motion upon the ground that the proposed defense is insufficient, as a matter of law, to raise an issue. ( 124 Misc. 634.)

Ordinarily the court will not, on a motion to amend, determine the merits of the proposed amendment, but will leave the parties to litigate at the trial the issues attempted to be raised by the amendment. The denial of the motion in this case might have the effect of finally determining the rights of the parties as effectually as a judgment after trial. Under such circumstances the court should grant the motion to amend unless facts exist which would make it inequitable to do so. If there is doubt as to the sufficiency of the proposed amendment the court should permit it to be served. The courts favor a policy which will enable the parties to an action to have the pleadings in such shape as will enable them to litigate upon the trial all question affecting their rights. ( Muller v. City of Philadelphia, 113 App. Div. 92; Reilly v. Waterson, Berlin Snyder Co., 194 id. 446; Guaranty Trust Co. v. Schmidt, 187 id. 561; Doty v. Rensselaer County Mutual Fire Ins. Co., 188 id. 29; Gedney v. Diorio, 190 id. 85; Rosenberg v. Feiering, 124 id. 522; Bates v. Salt Springs National Bank, 43 id. 321.)

It has been discovered since the motion was decided at Special Term that the defendant's attorneys made a mistake in drafting the proposed amended answer. In view of that fact this court will not decide the motion, but will permit the defendant to make a new motion upon corrected papers. We do not pass upon the question raised as to the sufficiency of the proposed amendment to raise an issue.

All concur. Present — HUBBS, P.J., CLARK, DAVIS, SEARS and TAYLOR, JJ.

Order reversed, without costs, and permission granted to the defendant to make a new motion for permission to serve an amended answer.