Myers v. Rosenback — 29 N.Y.S. 34

Majority

p. 34

(9 Misc. Rep. 89.)

MYERS v. ROSENBACK.

(Common Pleas of New York City and County, General Term.

June 4, 1894.)

Headnote

Plead mo—Amendment—Supplemental Matter.

A supplemental pleading cannot be filed' in a district court of New York City, and therefore supplemental matter may be inserted in an answer by amendment. 28 N. Y. Supp. 9 , affirmed.

Appeal from special term.

Action by Frederick S. Myers against Moses S. Rosenback, brought in a district court, and removed to the court of common pleas. From an order allowing matter of supplemental pleading to be incorporated in the answer by amendment (28 N. Y. Supp.), plaintiff appeals.

Affirmed.

Argued before BOOKSTAVER, BISCHOFF, and PRYOR, JJ. '

Hamilton R. Squier, for appellant.

Otto Horwitz, for respondent.

The distinction between an amended and a supplemental answer is only in the time when the matter of the defense -occurred, or came to the knowledge of the pleader. But time does mot affect the substance of the defense. If good in an amended, it •is good in a supplemental, answer; and, if good in a supplemental, "it is good in an amended, answer. To incorporate in an answer sup■plemental matter, by way of amendment, violates only a technical rule of pleading, and is without effect upon the substantial rights of the parties. It is the distribution of substantial justice, however, ¡irrespective of formal rules of procedure, that is the function of -district courts, in disposing of the litigation before them. Were $they to be fettered by all the technical and recondite rules of practice with which judges and counselors in courts of record are pre: sumed to he conversant, they would surely miscarry in the attainment of that “cheap and speedy justice” which is the end of their institution. We are content to affirm the order on the opinion at special term. 28 N. Y. Supp. 9 . Order affirmed, with costs and disbursements. All concur.