Hellman v. Licher — 9 Abb. Pr. 288

Majority

p. 288

HELLMAN against LICHER.

Supreme Court, First District; at Chambers,

November, 1869.

Headnote

Bankrupt’s Discharge.—Supplemental Pleadings.

A defendant obtaining a bankrupt’s discharge, after the commencement of the action and answer, may be allowed to plead it by way of supplemental answer, but leave will be given to plaintiff to discontinue without costs.

Motion for leave to file supplemental answer.

This action was brought by Nathan Heilman against Charles L. Licher and others; and the defendant, Licher, after having answered in the action, procured a discharge in bankruptcy. He now applied to the court for leave to plead such discharge by a supplemental answer.

Under the old practice an insolvent discharge was allowed to be pleaded although obtained after suit, but the plaintiff was allowed to discontinue without costs. It would be unjust to deprive a party of the benefit of a discharge under the bankrupt act because the action had been commenced before the discharge.

The motion must be granted, but with the privilege to the plaintiff to discontinue without costs.