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Rose v. Village of White Plains

132 N.Y.S. 554 Court N.Y. App. Div. Decision date 1911-12-21 English

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p. 554
ROSE v. VILLAGE OF WHITE PLAINS.
(Supreme Court, Appellate Division, Second Department.
December 21, 1911.)

Headnote

1. Pleading (§ 166[1] ) — Affirmative Defense — Reply — Necessity.
A reply to an affirmative defense is not necessary in the absence of an order therefor.
[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 32114-328; ■Dec. Dig. § 166.[1] ]
' 2. Appeal and Error (§ 1201[1] ) — Reversal — Powers of Lower Court — Amendments of, Pleading — Discretion of Court.
A plaintiff, deeming it necessary to amend his complaint in the respect asked for at the trial, may, after reversal of judgment of dismissal of the complaint, apply to the Special Term, which has power to grant the amendment on such terms as shall be just.
[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4673-4683; Dec. Dig. § 1201.[1] ]
On motion for reargument. Denied.
For former opinion, see 131 N. Y. Supp. 334 .
Argued before JENKS, P. J., and HIRSCHBERG,. THOMAS, BURR, and CARR, JJ.
Henry R. Barrett, for the motion.
Humphrey J. Lynch, opposed.

In the decision of the appeal herein, this court assumed that plaintiff’s motion made at the trial to amend his complaint had been granted. The record is somewhat obscure upon this point. In view of defendant’s assertion ’that such was not the fact, which seems to be acquiesced in by plaintiff, .if the mistake made was of importance, the motion for reargument should be'granted. But the result would be the same in either case. Plaintiff alleged full performance of the contract; defendant denied it. Not content with this denial, he further alleged a specific violation of the contract, calling it an “affirmative defense.” In fact it was not such.

[1] But if it had been properly so described, no reply to it was necessary in the absence of an- order therefor. The pleadings then presented questions of fact which could not be disposed of without proof.

The motion for a reargument should be denied, without costs.

[2] If plaintiff deems it necessary to amend in the respect asked for at the trial, he may apply to the Special Term, which has power to grant the same, upon such terms as shall be just.