Majority
p. 410ROEMER et al. v. 35% AUTOMOBILE SUPPLY CO. (Supreme Court, Appellate Division, First Department. May 17, 1912.) Argued before INGRAHAM, P. J„ and RAUGHLJN, CLARKE, SCOTT, and MILLER, JJ.
Headnote
Pleading (§ 280*)—Supplemental Answer.Where a counterclaim existed at the commencement of an action, but facts subsequently occurring entitle the defendant to greater relief than that to which he was entitled when the action was commenced, he may set up such facts by a supplemental answer.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 842-846; Dec. Dig. § 280.*]
«Por other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Special Term, New York County.
Action by Edward B. Roemer and others, copartners doing business as the Flash Manufacturing Company, against the 35% Automobile Supply Company. From an order denying leave to serve a supplemental answer, defendant appeals. Reversed and motion granted.
Edmund L. Mooney, of New York City, for appellant.
James A. Hughes, of New York City, for respondents.
Properly speaking, the cause of action of which defendant seeks to avail itself by way of counterclaim did exist when the action was commenced. The most that can be said is that .events had not then occurred which would entitle defendant to full relief. Those events have occurred, as it is said, since the action was begun, and it is reasonable and proper that defendant should be allowed to set them up by supplemental answer. In this way the whole controversy will be brought before the court, and the rights of the parties as against each other determined in a single litigation.
The order appealed from must be reversed, with $10 costs and disbursements, and the motion granted.