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5 A.D. 130

Van Wickle v. Baron

Appellate Division of the Supreme Court of the State of New York

Decided May 15, 1896

Appellate Division of the Supreme Court of the State of New York · decided 1896-05-15

<p>Complaint — a delay from 1892 to 1896, not hurtful to the defendant, is not a ground, for denying leave to amend it — Laws 1848, chap. 40, §§ 10, 11.</p> <p>In an action brought by judgment creditors of a domestic corporation in January, 1892, based upon an allegation that the whole amount of the capital stock of such corporation had not been paid in, and a certificate of the fact recorded as required by law, the plaintiffs, in April, 1896, applied for leave to amend their complaint by inserting allegations that the stock of the defendant was not issued in payment for property necessary for the business of the company; that no such property was purchased; that the only stock issued for anything except cash was stock of the par value of §100,000 issued to the promoter of the company for his services and expenses in organizing the company; that these services were fraudulently overvalued, and that the stock issued to pay for them was issued in had faith, and for the purpose of evading the statute.</p> <p>The case, although at issue and upon the calendar, had not been reached for trial.</p> <p>Held, that the court had power to allow the amendment;</p> <p>That although the motion had not been promptly made, as it did not appear that the defendant had suffered any injury by reason of the delay, it was a mis taken exercise of discretion to deny it.</p>

Decided 1896-05-15

Per Curiam :

¶1There can be no doubt but the court had power to allow the amendments asked for. The motion must, therefore, have been denied as a matter of discretion, because not made promptly enough. No other valid reason could have been alleged for the exercise, of such discretion. No injury had been suffered by the defendant by reason of the delay. The action had been at issue for the last four years, and had not been tried because not yet reached upon the calendar. There seems to have been some disagreement by the different courts as to the necessity of alleging the facts sought to be inserted in the complaint in order to maintain the action. We think under the circumstances the amendments should have been allowed.

¶2The order appealed from should, therefore, be reversed, with costs to the appellants, and the motion for leave to amend be granted, upon payment of ten dollars costs of motion and all costs and disbursements of the action after notice of trial.

¶3Present — Barrett, Rumsey, Williams, Patterson and Ingraham, JJ.

¶4Order reversed, with costs to appellants, and motion for leave to amend granted, upon payment of ten dollars costs of motion and all costs and disbursements of the action after notice of trial.

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