Fielden v. Caselli
New York Supreme Court
Appeal from an order refusing to strike out from an answer a denial inserted by way of amendment. This action was brought against Alexander Caselli, Louis' Emile Lahens, and others, by Thomas Fielden, and others, as judgment-creditors of the defendant Caselli, to set aside certain alleged fraudulent assignments, and to compel an accounting. Three defences were interposed by the defendant Lahens, to the second of which the plaintiffs demurred.
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Appeal from an order refusing to strike out from an answer a denial inserted by way of amendment. This action was brought against Alexander Caselli, Louis' Emile Lahens, and others, by Thomas Fielden, and others, as judgment-creditors of the defendant Caselli, to set aside certain alleged fraudulent assignments, and to compel an accounting. Three defences were interposed by the defendant Lahens, to the second of which the plaintiffs demurred. Their demurrer was sustained, and judgment awarded in their favor on such demurrer, with costs; “ with liberty, however, to the said defendant, Louis…
1Opinion of the Court
Bt the Court.*—Ingraham, J.
This matter is not added as ■a separate defence, but as intended to aid the defence formerly demurred to. Although it was not thought necessary in the former answer to set up these facts, still I know of no rule that would prevent the party, under the Code, from obtaining leave to amend in this respect. The omission to contradict an allegation in a pleading should not, on such an application, be considered equivalent to a direct admission of its truth. In the latter case, some explanation would be required before a party would be allowed to make a contrary…
2Cases cited2 opinions
- Macqueen v. BabcockNew York Supreme Court · 1861
- Wyman v. RemondNew York Supreme Court · 1859
3Cited by1 opinion
- Mann v. Press Publishing Co.Appellate Division of the Supreme Court of the State of New York · 1909