Perlmutter v. Russell , 174 N.Y.S.2d 1019 ( 1958 )

In an action against a husband and wife to recover the agreed

price or reasonable value of merchandise alleged to have been sold and delivered to them by plaintiffs-respondents the appeal is from so much of an order of the County Court, Dutchess County, as granted summary judgment (Rules Civ. Prac., rule 113) against appellant, and denied her cross motion to amend her answer so as to allege (a) that the articles sold were necessaries delivered to her after her husband had abandoned her without just cause, and after his refusal and failure to support her, and (b) that they were purchased by her as her husband’s agent, duly authorized by him, and on his credit. Order modified (1) by striking therefrom the first and second ordering paragraphs and by substituting therefor a provision that the motion for summary judgment be denied in all respects, and (2) by striking from the third ordering paragraph the word “ denied ” and by substituting therefor the words and figure “ granted, with $10 costs.” As so modified, order insofar as appealed from unanimously affirmed, with $10 costs and disbursements to appellant, payable by plaintiff-respondents. The record discloses that there are questions of fact which should not have been decided on the affidavits submitted (see Rudnick v. Tuckman, 1 A D 2d 269, 271; Dawson v. Greenberg, 5 A D 2d 744; Match v. Leonard, 165 N. Y. 435; Constable v. Rosener, 82 App. Div. 155, affd. 178 N. Y. 587). Under the circumstances, no prejudice to plaintiffs-respondents having been shown, appellant should have been permitted to amend her answer so that all essential questions may be raised by the pleadings and a possible claim of surprise may be avoided on the trial. Nolan, P. J., Wenzel, Beldock, Ughetta and Hallinan, JJ., concur.