Hirshfeld v. Fitzgerald — 39 N.Y.S. 1125

Majority

p. 1125

HIRSHFELD, Appellant, v, FITZGERALD et al., Respondents.

(Supreme Court, Appellate Division, First Department.

June 12, 1896.)

Headnote

Action by Jacob Hirshfeld, suing in his own behalf, and in behalf of all other creditors of the Madison Square Bank, against Lawrence J. Fitzgerald, F. Cyrus Straat, Rufus T. Peck, and William Fitts, impleaded with John Bopp and others.

Louis Marshall, for appellant. Franklin Pierce, for respondents.

We do not think that there was any error committed by the court below in allowing the defendants to serve the supplemental answer in question. In affirming this order, we do not, however, intend to intimate what the legal effect would be of the proof which may be offered to sustain the allegations contained in such supplemental answer. That depends so largely upon the nature of the evidence which-may be offered that any assumption arising-from our affirmance of the order, as to omr views upon the law, might be entirely erroneous. And, furthermore, if the order were reversed, and the motion to serve the supplemental ai>swer denied, there would be no opportunity fertile defendants to review our decision. The order should be affirmed, with §10 costs and disbursements.