S. P. Vasile & Son v. Concrete Trans-Mix Corp.

Order reversed, with $10 costs and disbursements and motion granted, with $10 costs. Memorandum: Unless a proposed amended answer is clearly bad or frivolous, its sufficiency is ordinarily not to be determined upon a motion to serve it but remains to be tested upon a motion after it is served or upon a trial. (Gillette v. Allen, 269 App. Div. 441, 449; Anderson v. New York Central R. R. Co., 284 App. Div. 64.) Here the questions of agency and notice present factual issues not determinable upon the motion. All concur. (Appeal from an order of Monroe County Court denying defendant’s motion for leave to serve an amended answer.) Present — McCurn, P. J., Vaughan, Wheeler, Williams and Bastow, JJ.