Williams v. Hays — 5 N.Y.S. 666

Majority

p. 666

Williams v. Hays.

(Supreme Court, General Term, First Department.

May 24, 1889.)

Headnote

Pleading—Supplemental Answer.

Under Code Civil Proc. N. Y. § 544, authorizing the court to allow supplemental pleadings, alleging material facts which occurred after the former pleading, including the judgment of a competent court rendered after the commencement of the action, etc., the court properly exercised its discretion in allowing defendant, in an-action by the assignee of the claim of an insurance company against the master of the insured vessel for the amount of the policy paid to the owners, the contention-being that the ship was lost through defendant’s negligence, to file a supplemental answer setting up the result of an action by defendant against the insurance company, which had ended since the filing of defendant’s original answer, and which involved the question of negligence in sailing the vessel.

p. 667

Appeal from special term, Yew York county.

This is an appeal from an order permitting defendant to serve a supplemental answer setting up the result of another action. Code Civil Proe. Y. Y. § 544, authorizes the court, on such terms as may be just, to permit supplemental pleadings alleging supplemental facts which occurred after the former pleadings, including the judgment of a competent court, rendered after the commencement of the action, etc.

Argued before Van Brhnt, P. J., and Bartlett and Macobiber, JJ.

Geo. A. Black, for appellant. Goodrich, Beady c£- Goodrich, for respondent.

The defendant in this action, prior to the beginning thereof, brought an action in the superior court of the city of Yew York, against the Phoenix Insurance Company, upon a policy issued to him as the owner of three-sixteenths of the brig Emily T. Sheldon. In that action the insurance company, while admitting the issuing of the policy, put in issue, among other things, the seaworthiness, sailing, and wreck of the vessel. That action resulted in a verdict in behalf of the plaintiff therein for $1,943.72. Subsequent to the beginning of the above-mentioned action, this action was brought upon a claim, assigned to this plaintiff by the Phoenix Insurance Company, of $916.98, being for money paid by that company to Parson & Loud, for the loss of the same brig, under a policy issued by such company to Parson & Loud, who were the owners of one-sixteenth-of the ship, and this action is based upon the claim that the loss of said brig was due to the negligence, carelessness, and misconduct and improper navigation of this defendant. After the trial and decision of the case in the superior court, a motion for leave to tile a supplemental answer in this case was made, and was granted. It is obvious that the judge at special term properly exercised the discretion reposed in the court to permit the filing of a supplemental pleading, setting up matters happening after the filing or service of the original pleading. This right, under section 544 of the Code of Civil Procedure, unless it be shown that the object of the application is to obtain delay, or that it is not otherwise made in good faith, or unless the proposed pleading is manifestly frivolous, cannot be properly withheld from a party when timely asserted. The sufficiency in law of the supplemental pleading is not passed upon in this class of motions further than as above stated. The order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs. Bartlett, J., concurs in result