Mallouk-Wardi Corp. v. Aero Waist Co.

Headnote

Pleading — action for goods sold and delivered — defendant may not under general denial prove that it never dealt with plaintiff — defendant not entitled as of right to amend on trial so as to set up counterclaim.

Mallouk-Wardi Corpn. v. Aero Waist Co., 194 App. Div. 892 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 6, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was for goods alleged to have been sold and delivered to defendant by plaintiff under its trade name of Bergen Silk Mills. The trial court ruled that the plaintiff was entitled to recover in the right of the Bergen Silk Mills, and that the defendant, under a general denial, might not prove that it never dealt with the plaintiff; that it was incumbent

upon the defendant to plead affirmatively that it had not dealt with the plaintiff, but with the Bergen Silk Mills; that the defendant was not, as of right, upon the trial, entitled to an amendment by setting up a counterclaim against the Bergen Silk Mills.