Marx v. Gross — 58 N.Y. Super. Ct. 221

Majority

p. 221

FREDERICK MARX, et al., Appellants v. EUGENE A. GROSS, et al., Respondents.

Headnote

Amendment of answer, allowance of where the answer sets up a new defence.

The court at special term has the power to allow an amended answer setting up a new defence in the action.

In the case at bar the amended answer contained two defences. 1st. A denial of making the contract set forth in the complaint, and 2nd, That defendants were induced to make the contract by the false and fraudulent representations of the plaintiffs. Held, that these two defences are inconsistent with each other.

Order amended by striking out the general denial, and affirmed as amended.

Before Sedgwick, Oh. J., Truax and Dügro, JJ.

Decided May 6, 1890.

Appeal by plaintiffs from an order allowing defendants to serve an amended answer.

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■George A. Black, for appellants.

Foster & Thomson, attorneys, and W. Bourke Cochran of counsel, for respondents.

The principal question argued at the general term related to the power of the court at special term to allow an amendment setting up a new defence. We are of the opinion that the special term had the power to allow such an amendment. Smith v. Bodine 74 N. Y. 35 ; Hatch v. Central National Bank 78 lb. 487.

The action was brought to recover damages for a failure to deliver certain glycerine that plaintiffs had purchased from the defendants. The answer was in effect a denial of the making of the contract set forth in the complaint. The defendants asked to amend their- answer by setting up the defence that they were induced to make this contract by certain false and fraudulent representations of the plaintiffs. The defendants also sought to recover as a counterclaim certain damages sustained by them by reason' of such false and fraudulent representations. We are of the opinion that a good defence to the cause of action stated in the complaint and a good counterclaim were set forth in the amended answer. Itwas alleged in the complaint that the breach of the contract took place after the 12tli day of October, 1886. The allegation is in these words: “ since the said 12th day of October, 1886, the defendants have refused and neglected to deliver to the said plaintiffs any more of the-said crude glycerine.”

The amended answer sets, up the false and fraudulent representations made lay plaintiffs, and shows that defendants relied upon such representations and believed them to be true up to and on said 12th day of October. It then proceeds to state that subse

p. 223

quently to said 12th day of October, and on or about the 15th day of October, 1886, the defendants learned that said representations were false and fraudulent and then refused to deliver any more glycerine at the price agreed upon. This is in effect an allegation that the defendants elected to rescind the contract, and constitutes a good defence to the cause of action set forth in the complaint. The amen ded answer contains two defences ; it contains a denial of the making of the contract set forth in the complaint, and an allegation that the defendants were induced to make the contract by the false and fraudulent representations of the plaintiffs. These two defences are inconsistent, and the order should be amended by striking out the general denial; as amended it is affirmed without costs to either party.

Dttgko, J., concurred.