
    NEUSS HESSLEIN & CO., Inc., v. CAROLINA FREIGHT CARRIERS CORPORATION.
    United States District Court S. D. New York.
    Dec. 13, 1949.
    George I. Janow, New York City, for plaintiff.
    John P. Smith, New York City, for defendant.
   NOONAN, District Judge.

This is a motion to amend an answer under Rule 15(a), Federal Rules of Civil Procedure, 28 U.S.C.A. The complaint in this case, alleging breach of contract and ■conversion, was filed on March 7, 1949. The answer, denying the material allegations of the complaint was filed March 28, 1949. The deposition of the plaintiff was taken on April 19, 1949. The defendant now wishes to amend his answer to interpose an affirmative defense to the effect that the plaintiff is not the real party in interest.

The plaintiff, in opposition to this motion, does not argue against the amendment, but, rather, challenges the legal sufficiency of the proposed amended answer. However, ■on a motion to amend, it is not the function of the court to pass on or test the legal sufficiency of the proposed pleading. Rucienski v. Vanedium Corp. of America, D.C., 6 F.R.D. 313.

Motion granted.  