Miles v. Kuttner — 110 N.Y.S. 225

Majority

p. 225

MILES et al. v. KUTTNER.

(Supreme Court, Appellate Term.

May 15, 1908.)

Headnote

Courts—Municipal Courts—Pleadin g—Amen dmbnt.

Under Municipal Court Act, Laws 1902, p. 1542, c. 580, § 166, providing that the court must allow a pleading to be amended at any time, if substantial justice will be promoted thereby, defendant, who had filed a verified answer, should, on motion, made the day set for trial, for judgment on the pleadings, on the ground that the answer did not deny the allegations of the complaint, have been allowed to amend.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Herbert L. and Harry J. Miles against John Kuttner. Erom a judgment for plaintiffs, defendant appeals.

Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and GIEGERICH and GREENBAUM, JJ.

Arthur Gutman, for appellant.

Adolph M. Schwarz, for respondents.

Plaintiffs filed a verified complaint, and the defendant filed a verified answer herein. The plaintiffs’ attorney, on the day set for trial, moved for judgment on the pleadings, upon the ground that the answer did not deny the allegations of the complaint. The defendant thereupon moved to be allowed to amend the answer, which motion was denied, and judgment rendered in favor of the plaintiffs. This was error. The defendant should have been allowed to amend, if his answer was insufficient. Municipal Court Act, Laws 1902, p. 1542, c. 580, § 166.

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