J. Sullivan & Sons Mfg. Corp. v. Trade Bank & Trust Co.

Per Curiam.

The defendant has waived its appeal insofar as the Statute of Frauds defense is concerned, so that the only-issue is whether the motion should have been granted as to the second affirmative defense which purports to set up an alleged election of remedies by the plaintiff.

The defendant did not learn of the facts of the proposed second defense until six months after the commencement of the action and after the interposition of the original answer. While the court will not attempt to determine the issues thus presented, it is clear at least that there is merit to the proposed amendment. In the circumstances, the court below should have granted permission to serve the amended and supplemental answer. The power to permit amendment of pleadings is to be exercised liberally in the furtherance of justice so that one may have an opportunity to have determined at the trial every question affecting his interest involved in the subject matter of the litigation. (Bendan Holding Corp. v. Rodner, 245 App. Div. 723; Gedney v. Diorio, 190 App. Div. 85; Washington Life Ins. Co. v. Scott, 119 App. Div. 847.)

The order so far as appealed from should be modified, with $10 costs and disbursements to the defendant, and motion granted permitting defendant to serve an amended and supplemental answer containing the second distinct and affirmative defense within 10 days after service of copy of order entered hereon.

Concur — Hofstadter, J. P., Stetjer and Tilzer, JJ.

Order modified, etc.