L. & M. Kahn & Co. v. Casper — 51 A.D. 540

Majority

p. 540

L. and M. Kahn & Company, Appellant, v. Charles Casper and Lettitia Casper, Respondents.

Headnote

Discharge in bankruptcy, granted after answer and before a judgment by default— a supplemental answer setting it up allowed on terms.

Where it appears that a defendant, who has'suffered a judgmentto be rendered. against him upon an .-inquest taken by default, was discharged in bankruptcy, after the service of the answer and before the rendition of the judgment, his . motion to vacate the judgment and to be allowed to serve a supplemental, answer setting up his discharge in bankruptcy, should be granted, upon terms, • sufficient, time not having elapsed to authorize the cancellation of the judgment. under section 1268 of the Code of Civil Procedure. .

p. 541

Appeal by the plaintiff, L. and 'M. Kahn & Company, 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 Hew York •on the 22d day of March, 1900, granting the motion of the defendant Charles Casper to vacate a judgment by default, entered against him upon an inquest on the 11th day of November, 1899, and .granting him leave to serve a supplemental answer setting up by way of defense his discharge in bankruptcy.

Section 1268 of the Code of Civil Procedure, which is referred to in the opinion, authorizes a bankrupt, after the expiration of one year since his discharge, to apply to the court in which a judgment was rendered against him, for the cancellation thereof.

I. Gainsburg, for the appellant.

John J. Jewry, for the respondents.

As the discharge in bankruptcy in this case was granted on the 19th of July, 1899, and the motion for leave to amend the answer was made on the 9th of March, 1900, sufficient time had not ■elapsed to authorize the defendant Charles Casper to move under •section 1268 of the Code of Civil Procedure, even if under the cir- ■ cumstances the ease could ever be brought within the provisions of that section. The motion, therefore, presented the ordinary case of ■a person who asks leave to set up in a supplemental answer what seems to be a complete defense to the action which has come into ■existence since the original answer'was served. In such cases when the motion for leave to serve a supplemental answer is granted, it is •yisnal and proper to impose terms, and that should always be done : unless, perhaps, some especial reasons are made to appear to the contrary. There are no such reasons in this case, and, therefore, while it was not improper to' grant the motion, even in view of the very considerable delay in making it, it should not have been granted without terms, and the order is, therefore, modified by requiring as a condition for the granting of the leave to serve a supplemental answer that he should pay all the costs of the action, including the costs of entering judgment upon the default, and that if the plaintiff desires to discontinue the action as to Charles Casper,

p. 542

he should be permitted to do so without costs, and, as so modified, the order should be affirmed, without costs.

Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred-

Order modified as directed in opinion and as modified affirmed, without costs.