Wendring v. Louis & L. J. White Co.

Order reversed on the facts as matter of discretion, without costs, and motion granted on condition that plaintiff pay to defendants ten dollars costs of this motion. Memorandum: Inasmuch as the memorandum of Justice Harris of April 9, 1935, and the letter of plaintiff’s attorney of July 23, 1935, were written before March 3, 1936, when the decision of the Court of Appeals in Schmidt v. Merchants Despatch Transportation Co. (270 N. Y. 287) was made, plaintiff should be relieved of his attorney’s acceptance of Justice Harris’ memorandum (no order having been entered thereon before the date of this motion). We, therefore, exercise our discretion and grant plaintiff’s motion to amend the complaint in respect to the allegation of a cause of action for breach of statutory obligations. All concur. (The order denies plaintiff’s motion for leave to serve an amended complaint in a negligence action.) Present — Sears, P. J., Crosby, Lewis, Taylor and Dowling, JJ.