Mann v. Sprout
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Charles M. Mann, from so much of an order of the County Court of Niagara county, entered in the office of the cleric of the county of Niagara on the 3d day of October, 1904, as as permits the withdrawal by the defen dant of the amount of the tender theretofore paid into court, pursuant to an order directing the same.
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Appeal by the plaintiff, Charles M. Mann, from so much of an order of the County Court of Niagara county, entered in the office of the cleric of the county of Niagara on the 3d day of October, 1904, as as permits the withdrawal by the defen dant of the amount of the tender theretofore paid into court, pursuant to an order directing the same. The order appealed from permitted the defendant to serve an amended answer, setting up, among other things, a counterclaim to plaintiff’s alleged cause of action, upon condition that the defendant pay to the plaintiff the sum of twenty-live dollars and…
1Opinion of the Court
McLennan, P. J.:
The question presented by this appeal is whether or not the court has power to permit an amendment of an answer which shall be effectual where the defendant has paid into court an amount *63tendered to the plaintiff under a mistake of fact. The question as to whether or not the court improperly exercised its discretion in permitting the defendant to serve an amended answer in this case is not involved, as that part of the order is not appealed from. The question is: Has the court power to relieve a defendant from the effect of a tender which, after the commencement of the action,…
2Cases cited2 opinions
- Becker v. . BoonNew York Court of Appeals · 1874
- Beil v. Supreme CouncilAppellate Division of the Supreme Court of the State of New York · 1899