p. 251Lewis Radley vs. Henry Houghtaling.Headnote
When facts material to the defence occur after the joining of issue, leave will he given, on motion, to set them forth in a supplemental answer, and the plaintiff will have 20 days to reply to such supplemental answer.Albany Special Term, Feb. 1850.This was an action for assault and battery; issue was joined in May, 1849. Since the commencement of this suit another action had been brought in the Albany Mayor’s Court by the defendant against the plaintiff for slander, on which a trial had been had and a verdict was rendered for six cents damages. On that trial the defendant in that suit set up in mitigation of damages that he was provoked to the uttering of the slander by a violent assault and battery committed on him by the plaintiff immediately before the speaking of the slanderous words, in consequence of which only nominal damages were recovered. The defendant now moves for leave to put in a supplemental answer setting up such trial and recovery.
R. W. PeckhAM, for defendant,
claimed that a supplemental answer was necessary to enable him to show the facts that had taken place since issue was joined; and insisted that the plaintiff, having availed himself of the assault and battery to reduce the recovery to six cents, could not now recover for the assault and battery: or, if not a bar, that such proof would be proper in mitigating damages—citing 2 Wend. 497 ; 13 do. 658; 2 Hill, 478 ; 3 do. 171; 1 John. R. 286; Cow. & Hill’s notes, 828, 830, 960, &c.John J. Tyler, for plaintiff.
The code provides (§ 177) that the plaintiff and defendant respectively may be allowed, on motion, to make a supplemental answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply. Under this section, the defendant is entitled to relief. I think the facts which transpired on the former trial are material to this case. How far they will go towards establishing a defence, it is not necessary to say. That question will be decided at the circuit in such a form as to afford to either party an opportunity to review the decision.
An order must, therefore, be entered, permitting the defendant to put in a supplemental answer within ten dayá, setting out the former trial and proceedings thereon and the judgment, on paying to the plaintiff the costs of preparing for and attending at the March circuit, and ten dollars for costs of resisting this motion. The plaintiff will have twenty days to reply to such supplemental answer.