Hyperlawhypertext legal database Congregation Rodeph Sholom v. Bradley Contracting Co. 159 N.Y.S. 70

← Cases

Congregation Rodeph Sholom v. Bradley Contracting Co.

159 N.Y.S. 70 Court Argued May term, 1916, Decision date 1916-05-16 English

Delivered by BIJUR, J.

Contents

Majority

p. 70
CONGREGATION RODEPH SHOLOM v. BRADLEY CONTRACTING CO.
(Supreme Court, Appellate Term, First Department.
May 16, 1916.)

Headnote

Pleading <@=238(3)—Amendment—Affidavit.
-An affidavit of one of plaintiff’s attorneys that at the opening o£ the trial the complaint was dismissed on defendant’s motion, which dismissal was afterwards set aside on condition that plaintiff apply at Special Term within 15 days and obtain leave to serve an amended complaint, together with the proposed amended complaint, was insufficient to warrant the granting of leave to amend.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 622; Dec. Dig. <S=238(3).]
®=s>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Special Term.
Action by the' Congregation Rodeph Sholom against the Bradley Contracting Company. From an order permitting the plaintiff to amend its 'complaint, defendant appeals. Reversed, with leave to plaintiff to apply for permission to amend its complaint.
Argued May term, 1916,
before GUY, BIJUR, and COHALAN, JJ,
Frederick L. C. Keating, of New York City (Joseph A. Corbett, of Brooklyn, of counsel), for appellant.
Maurice B. Sr Daniel W.' Blumenthal, of New York City (M. B. Blumenthal, of New York City, of counsel), for respondent.

The motion was granted upon an affidavit of one of plaintiff’^ attorneys to the effect that at the opening of the trial the complaint was dismissed on defendant’s motion, which dismissal was later set aside upon condition that plaintiff apply at Special Term within 15 days and obtain leave to serve an amended complaint.

It seems almost superfluous to point out that such an affidavit, which, with the proposed amended complaint annexed thereto, were the sole papers upon which the application was based, is insufficient to warrant the granting of leave to amend. It appears, also, that the terms

p. 71
imposed, namely, $10 motion costs, were quite inadequate to compensate defendant for its counsel’s attendance at the trial.

The order is therefore reversed, with $10 costs and disbursements, but with leave to plaintiff to apply upon sufficient papers for permission to amend its complaint within 6 days after notice of service of entry of this order. All concur.