Bailey v. Kay , 1867 N.Y. App. Div. LEXIS 201 ( 1867 )

By the Court,

Hogeboom, J.

I think a new trial should be granted in this case, for the refusal to allow the defendant to amend his answer. The new matter proposed to be incorporated in the answer, was' prima facie a complete defense to the action, and a valid excuse was presented for not pleading it before. This defense in substance was that the assault and battery complained of, was a part of the identical transaction for which the defendant had just recovered damages in an action for assault and battery against the plaintiff. These matters forming one transaction, the law requires them to be disposed of in a single action. (Elliott v. Brown, 2 Wend. 497. Coles v. Carter, 6 Cowen, 691.)

This forming a substantive defense, it was a matter of right, I think, that the deféndant should have been allowed to plead it. The terms were no doubt more or less in the discretion of the court; but no question arose about the terms. From the mode in which the case was .made up, we must assume that the proposed defense was overruled as inadmissible or insufficient, and not because in the exercise of a sound discretion it was not fit to be introduced. If it were excluded upon any such limited and qualified ground, I think it should have been so stated ; more especially as the defendant by his offer made a prima facie case for its admission. We should.be in danger, I think, of doing injustice if we did not give this construction to the proceedings; and it is safer and better to grant a hew trial on this ground than to exclude a defense apparently good. As to terms, they can be made right on the application to amend.

[Albany General Term, May 6, 1867.

There must be a new trial, with costs to abide the event.

Peckham, Ingalls and Hogeboom, Justices.]