Guliano v. Whitenack

Headnote

Pleadings—Piling Supplemental Answer—Discretion op Court.

An order allowing defendant to file a supplemental answer alleging a release of the cause of action after issue joined, and after the case has several times been on the trial calendar, and continued, is a proper exercise of discretion, but such order should be on condition of the payment of costs to the date of the order.

Appeal from special term.

Action for personal injuries by Antonio G-uliano against John H. Whitenack. From an order allowing defendant to file a sumfiemental answer, plaintiff appeals.

Affirmed on condition.

The complaint alleges that on August 31, 1889, the defendant, a contract- or and builder, was engaged in constructing an oven; that the plaintiff was a laborer in bis employment, who upon that day entered the oven, under his master’s direction, and was injured because of the negligent manner in which the oven had been constructed. The defendant answered the complaint on November 21, 1889. The action first appeared upon the day calendar on December 17, 1890, and it was then marked “Off term.’’ It reappeared upon the day calendar on May 4,1891, and was passed several days in May, and reappeared in June. On June 11th, it was marked “Off term” by the presiding judge. Afterwards and in December, 1892, plaintiff moved to restore the case to the trial calendar,-and defendant moved for leave to file a supplemental and amended answer, alleging that on or about the 26th day of May, 1891, plaintiff executed and delivered to defendant, under seal, a release, duly acknowledged, of all claim and demand on the part of the plaintiff set up, in the complaint, and from any and all claims and demands by him against this defendant. On December 24, 1892, the court (BISCHOFF, J.)made the following order, from which this appeal is taken: “Upon reading and filing the plaintiff’s notice of motion herein, that this cause be restored to-the calendar of this court, and placed on the day calendar for trial on the first Tuesday in January, 1893, and the affidavit of Joseph Wamsley, sworn to December 22, 1892, thereto annexed, and the affidavit of J. Hampden Dougherty, sworn to December 21, 1892, and said motion having regularly come on to be heard before me on December 21, 1892, after hearing Mr. j. Wamsley, plaintiff’s attorney, in favor of, aud Btessrs. Smith & Dougherty, defendant’s attorneys, in opposition thereto, ordered, that the said motion be, and the same is hereby, granted, upon plaintiff’s attorney stipulating, in writing, to accept service of a supplemental and amended answer herein. Said answer to be served within five days of a copy of this order on defendant’s attorneys.”