P. Steiger Trunk & Bag Co. v. Wharncliffe

Guy, J.

This is an appeal from a judgment rendered by the court without a jury in favor of plaintiff for $401.60 balance due for trunks sold and delivered by plaintiff to defendants. The answer pleaded payment. On the trial defendants moved to amend the answer so as to allege that plaintiff was a foreign corporation doing business within the State of Hew York, and as such foreign corporation had failed to comply with section 15 of the General Corporation Law. The complaint and answer both alleged that the plaintiff is a foreign corporation, but not that plaintiff was doing business in the State of Hew York. The motion to amend was denied, and an exception taken.

The defense set up in the proposed amendment, if establisted, would ¡have absolutely defeated plaintiff’s right of recovery. Plaintiff could not plead surprise, as the facts relating to such defense were entirely in the possession of the plaintiff.

The motion should have been granted, and the refusal to do so was reversible error. Miles v. Kuttner, 59 Misc. Rep. 224.

Giedersleeve and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.