Majority
p. 232STEINHARDT et al. v. EISEN et al. (Supreme Court, Appellate Term. June 22, 1903.) . Argued before FREEDMAN, P. J„ and GILDERSLEEVE and MacLEAN, JJ.
Headnote
1. Pleadings—Amendment—Defense, of Usury.Municipal court act (Laws 1902, p. 1542, c. 580, § 166), providing that the court must on application allow a pleading to be amended at any time if substantial justice will be promoted thereby, requires the municipal court to allow an amendment to defendants’ answer by setting up the defense of usury.
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by Louis H. Steinhardt and another against David Eisen and others. From a judgment for plaintiffs, defendants appeal. Reversed.
Steuer, Hoffman & Wahle, for appellants.
H. J. Hindes, for respondents.
At the close of the plaintiffs’ case, and again at the close of the whole case, the defendants asked leave to amend the
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answer by setting up the defense of usury. This was denied by the trial court. Municipal Court Act, § 166 (Laws 1902, p. 1542, c. 580), provides “that the court must, upon application, allow a pleading to be amended at any time, if substantial justice will be promoted thereby.” This proposed amendment should have been granted, upon such terms, however, as the court might deem proper. The defense sought to be interposed has sometimes been termed an unconscionable one, and not to be encouraged, but it is a legal one nevertheless, and if proven no recovery can be had. The judgment must therefore be reversed.
Judgment reversed. New trial ordered, with costs to appellants to abide the event.