Kimbel v. Mason
New York Supreme Court
Appeal from special term, Yew York county. Action by Anton Kimbel, Anton Kimbel, Jr., and Henry Kimbel against John Mason. The complaint sought to recover for goods sold and delivered and work done, for which it alleged defendant promised to pay an agreed price and it contained allegations as to an account stated between the parties, and prayed judgment for the balance.
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Appeal from special term, Yew York county. Action by Anton Kimbel, Anton Kimbel, Jr., and Henry Kimbel against John Mason. The complaint sought to recover for goods sold and delivered and work done, for which it alleged defendant promised to pay an agreed price and it contained allegations as to an account stated between the parties, and prayed judgment for the balance. The court granted a motion for a reference, on condition that plaintiff should strike from the complaint all allegations as to an account stated, and proceed solely on the allegations as to the sale and delivery of the goods…
1Opinion of the CourtVan Brunt, P. J.
We are of the opinion tnat the court had no power in the same order to direct an amendment of the complaint and order a compulsory reference. The defendant had a right to answer the amended complaint. Under the complaint as originally framed the plaintiff could certainly have claimed the right to prove an account stated. By the amendment this cause of action was eliminated, and one upon a quantum meruit substituted. This new cause of action the defendant had a right to meet by a new pleading. If it be claimed that there was also a count in the complaint for goods sold and delivered, and that…
2Cited by2 opinions
- Bartlett v. BunnNew York Supreme Court · 1889
- Neville v. ButlerCity of New York Municipal Court · 1899