Mitchell v. Bunn
New York Supreme Court
Appeal from an order denying leave to amend answer. The action being on trial before a referee, the defendant obtained an order staying proceedings, and to' show cause why he should not have leave to amend his answer by setting up a counter-claim.
Read the full summary
Appeal from an order denying leave to amend answer. The action being on trial before a referee, the defendant obtained an order staying proceedings, and to' show cause why he should not have leave to amend his answer by setting up a counter-claim. The motion was heard before Mr. Justice Ingbaham, wbu denied the motion, and indorsed as his opinion on the papers: “The proposed amendment of the answer Cannot be made without making a new issue, and then rendering all proceedings on the reference void. Nor is it proper, after commencing the trial, to amend an answer by adding a new defense. 13…
1Opinion of the CourtDaniels, J.
It appears, by the papers before the court, that the propriety of setting up the counter-claim first appeared during the taking of the evidence on the trial before the referee. The defendant thereupon, without unreasonable delay, applied for leave to *487ameiid Ms answer by alleging that defense; and the court seems to have denied the motion on the ground of want of power to permit the amendment after the trial had commenced. Such a restriction does exist on the power of the tribunal before which the trial is progressing. Eor that reason the referee could allow no such amendment. Neither could…
2Cases cited3 opinions
- The Union Bank of Tennessee v. Jolly's Adm'rs.Supreme Court of the United States · 1856
- Ford v. FordNew York Supreme Court · 1868
- Bigelow v. DunnNew York Supreme Court · 1868