Jones v. Gould

This is an application for leave to serve a supplemental answer. The answer which it is desired to serve alleges that since the institution of the above-entitled action a judgment has been entered in this court in favor of the plaintiff against the defendants in another action instituted in this court subsequent to the above-entitled action between the same parties and upon the same alleged transaction and praying for the same relief, which said judgment stands unreversed and unmodified and is a bar to this action and to the prosecution thereof. While it is true, as was held in Ratzer v. Ratzer, 2 Abb. N. C. 461 , and Groshon v. Lyon, 16 Barb. 461 , that where there are two proceedings pending between the same parties for the same cause of action the pendency of the proceeding first com

“Under section 544 of the Code the right to serve a supplemental pleading is not to be withheld, where timely asserted, unless it be shown that the object of the application is to obtain delay, or is not otherwise in good faith, or unless the proposed pleading is manifestly frivolous (Williams v. Hays, 53 Hun, 630 , 5 N. Y. Supp. 667 ; Mitchell v. Allen, 25 Hun, 543 ), or does not present a doubtful question (Morel v. Garelly, 16 Abb. Prac. 269 ; Lyon v. Isett, 34 N. Y. Super. Ct. 41 ; Tifft v. Bloomberg, 49 N. Y. Super. Ct. 323 ). Where a supplemental answer cannot be a bar, it will not be allowed (Ratzer v. Ratzer, 2 Abb. N. C. 461 ); but when there is some doubt as to the question it should not be determined upon the motion for leave to serve the pleading, but upon the trial (Hoyt v. Sheldon, 4 Abb. Prac. 59 ).”

In the case last cited it was held that where it cannot well be decided, except upon a hearing of the whole case, whether, as between the parties to the action, it would be inequitable to give effect to the defense desired to be pleaded, if proved, and the court is competent to dispose of that question at the hearing as may be just, a supplemental answer will be allowed. The court said in that case, with respect to a release which the defendant desired to plead, that:

“To deny this application is to prejudge the question as to the legal effect of the release and the equities of the parties,” and “we do not think it would be a proper exercise of discretion to deny the defendant an opportunity to establish the release and present the question whether it is in law a bar to the action.”

In both of the actions brought by the plaintiff against the defendants the latter are named in the titles individually, and in the prayers for relief judgment is asked against them individually, though in the allegations of the complaint in action No. 2, which has been tried, claim is made that they were the agents or trustees of a syndicate of individuals, to whom no reference is made in the complaint in action No. 1, now pending. Under these circumstances, and under the authority of Purdy v. Manhattan R. Co., supra, this court, upon this motion, should not undertake to positively and finally determine, to the detriment of the defendants’ rights upon the trial, that the judgment in the second action is not a barnto the plaintiff’s claim in the first action, and deny to the defendants the right of presenting by proper pleading that question to the trial court, by which it may be fully heard

Under these circumstances, in connection with the reasons above stated, the motion should be granted.