Legal Opinion

Mitchell v. Bunn

New York Supreme Court

Decided January 15, 1874Published

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.

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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

  1. The Union Bank of Tennessee v. Jolly's Adm'rs.Supreme Court of the United States · 1856
  2. Ford v. FordNew York Supreme Court · 1868
  3. Bigelow v. DunnNew York Supreme Court · 1868

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