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La Salle v. Friedman

150 N.Y.S. 152 Court N.Y. App. Div. Decision date 1914-12-04 Docket No. 6513 English

Delivered by SCOTT, J.

Contents

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p. 152
LA SALLE v. FRIEDMAN et al.
(No. 6513.)
(Supreme Court, Appellate Division, First Department.
December 4, 1914.)

Headnote

Judgment (§ 948[1] )—Pleading—Supplemental Answer—Defenses.
An application for leave to file a supplemental answer, setting up a former judgment in bar of the action, made after the cause had reached the day calendar, should be granted only on condition that it be filed within five days, and, if plaintiff so elect, the cause retain its position on the calendar.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1787-1793;. Dec. Dig. § 948.*]
Appeal from Special Term, New York County.
Action by Domonico La Salle against Charles Friedman and others. From an order denying motion to serve a supplemental answer, defendants appeal. Order reversed, and motion granted.
Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.
David Steckler, of New York City, for appellants.
Alexander Pfeiffer, of New York City, for respondent.

The present action is to recover damages for the breach of a building contract; plaintiff alleging that he was employed by defendant to make certain additions and improvements upon a -building, and that, after doing some work, he was unlawfully discharged. He filed a mechanic’s lien, and on the same day began two actions, one to foreclose the mechanic’s lien for work done and materials furnished, and the present one to recover damages.

The action to foreclose the mechanic’s lien was first tried, and resulted in a judgment for plaintiff, which has been paid. Defendant now seeks to set up that judgment as a bar. Without expressing any opinion as to the sufficiency of the plea, we think that defendant should be afforded an opportunity to present it in such a manner that it can be properly adjudicated upon, and tested on appeal. The defendant, however, has delayed this application for some eight months, and in the meantime the cause has reached the day calendar. The defendant should not be permitted to profit by his delay.

The order appealed from will therefore be reversed, without costs, and the motion granted, upon condition, however, that the supplemental answer be served within five days, and, if plaintiff so elects, the cause shall retain its present position upon the calendar. All concur.