Galm v. Sullivan — 117 A.D. 235

Majority

p. 235

Frank Galm, Appellant, v. John W. Sullivan, Respondent.

First Department,

January 11, 1907.

Headnote

Practice — defense .arising after service of answer.

A defense arising after the service of the answer can only he interposed hy leave of court and should he in the form of a supplemental answer. Such defense cannot he set up hy an amendment as of course.

Appeal by the plaintiff, Frank Galm, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of September, 1906, denying the plaintiff’s motion to strike out

p. 236

a so-called “ amended answer ” on the ground that a part thereof is irrelevant and constitutes matter only permissible in a supplemental answer.

Charles La Hue, for the appellant.

Be Witt Bailey, for the respondent.

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. After the defendant answered and noticed the case for trial, and placed it upon the calendar, the plaintiff settled Ins claim with the defendant and executed a release of his cause of action. The defendant thereafter and within the time within Which he was authorized to amend his answer as of course, and without leave of the court, served an alleged amended answer, setting up the release as a- defense.. It is manifest that this defense, arising after the original answer was served, could only be interposed by leave of the court and in the form of a supplemental answer. (Code Civ. Proc. § 544.)

.It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Patterson, P. J., Ingraham, - Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.