Opinion
March 14, 1956
Appeal from the Monroe County Court.
Present — McCurn, P.J., Vaughan, Wheeler, Williams and Bastow, JJ.
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.