Lyon v. Isett — 11 Abb. Pr. 353

Majority

p. 353

LYON against ISETT.

New York Superior Court;

General Term, June, 1871.

Headnote

Cause oe Action.—Bankruptcy.^[1] —Supplemental Answer.

Where a complaint alleges a conversion in general terms, but also states facts upon which, if proved, a recovery as upon contract may be had, defendant should be allowed, upon motion, to put in a supplemental answer, pleading a discharge in bankruptcy since joinder of issue.

p. 354

Appeal from order, at special term, denying defendant’s motion to be permitted to plead, by supplemental answer, their discharge in bankruptcy obtained since joinder of issue in the action.

The complaint alleged a conversion of certain stock deposited by James E. Lyon, plaintiff, with the defendants, James M. Isett and others.

At the time of said motion the trial of the action was pending before a referee. The motion was denied upon the sole ground that it appeared to the court “that the suit is in tort for the wrongful conversion of property, and that no recovery can be had therein, except in tort, and that said discharge would not, in any event, be a bar,” &c.

Peabody & Baker, for defendants, appellants.

Titus B. Eldridge, for plaintiff, respondent.

A supplemental

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pleading can be allowed only by the court, on motion. It should not be allowed at the trial (Garner v. Hannah, 6 Duer, 262 ).

Consequently section 272 of the Code, which confers upon referees the same power to allow amendments to any pleading, and to the summons, as the court possesses upon the trial, does not apply to this case.

The cases and the manner in which a supplemental answer is to be allowed are prescribed by section 177 of the Code, and the practice is, upon a case being made within the terms of that section, to grant the order almost as a matter of course. If the sufficiency of the proposed answer is a matter of doubt, the court will not prejudge the matter on such motion, but permit the defense to be made upon such terms as are deemed just (Hoyt v. Sheldon, 4 Abb. Pr., 59 ; S. C., 6 Duer, 661 ; Palmer v. Murray, 18 How. Pr., 545 ; Morel v. Garelly, 16 Abb. Pr., 269 ; Stewart v. Isidor, 5 Abb. Pr. N. S., 68).

The defendants Kerr and Farr were not only regular in their application, but, it seems to me, made out a sufficient case within the terms of section 177 (as amended in 1866) and the principle established by the authorities above cited.

The complaint, it is true, alleges a conversion in general terms, but it also sets forth sufficient facts upon which, when proved, plaintiff may fall back and recover as upon contract. This precise point has been determined by the court of appeals in Conaughty v. Nichols ( 42 N. Y., 83 ). The effect and applicability of the discharge in bankruptcy will depend, therefore, rather upon the proof at the trial, than upon the form of the complaint.

The order appealed from should be reversed and the defendants Kerr and Farr severally permitted, upon

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payment of ten dollars, to plead by way of supplemental answer their respective discharges. Such permission should also be conditioned to be without prejudice to the proceedings already had before the referee.

Footnotes

* Present, Jones, McCunn and Freedman, JJ.