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Salvage v. Hartley Silk Manufacturing Co.

138 N.Y.S. 800 Court N.Y. App. Div. Decision date 1912-12-13 English

Delivered by DOWLING, J.

Contents

Majority

p. 800
SALVAGE v. HARTLEY SILK MFG. CO.
(Supreme Court, Appellate Division, First Department.
December 13, 1912.)

Headnote

Pleading (§ 249*)—Complaint—Right to Amend.
Where, in an action for the value of goods sold, the defendant interposed, in addition to a general denial, a counterclaim for damages sustained by breach of a contract between him and a party on whose account the sales were made by plaintiff, plaintiff should have been permitted to serve an amended complaint, setting up as a second cause of action an account stated, the amount whereof was the same as that claimed in the first cause.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 710-729; Dee. Dig. •§ 249.*]
♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Special Term, New York County.
Action by Samuel A. Salvage against the Hartley Silk Manufacturing Company. From an order denying a motion to amend the complaint, plaintiff appeals. Reversed, and motion granted.
Argued before INGRAHAM, P. J„ and McRAUGHRIN, CLARKE, SCOTT, and DOWLING, JJ.
Gordon Gordon, of New York City, for appellant.
William C. Gennert, for respondent.

This action was brought to recover the value of certain yarn sold and delivered by plaintiff to defendant. An answer was interposed, wherein, after -a general denial, a counterclaim was set up for damages claimed to have been sustained by the breach of a contract between defendant and one Sidney Thomson, on whose account the sales in question had been made by plaintiff. Plaintiff seeks to serve an amended complaint, setting up as a second cause of action an account stated between himself and defendant, the amount whereof is exactly the same as that claimed under the first cause of action.

We see no reason why the relief desired should not have been granted upon proper terms. Plaintiff could have discontinued his pending action, upon payment of costs, and sued anew upon the cause of action he now seeks to introduce in his amended complaint. No greater hardship is entailed upon defendant by permitting the amendment than would have been caused by the'course indicated. The fact that a witness has left defendant’s employ, and it -will take some time to locate him, would be equally embarrassing in either event.

The order appealed from will be reversed, with $10 costs and disbursements to appellant, and the motion for leave to serve an amended complaint granted, on payment by plaintiff to defendant of the taxable costs of the action down to the time of making such application. All concur.