Varriale v. Metropolitan Street Railway Co. — 66 N.Y.S. 559

Majority

p. 559

VARRIALE v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Division, First Department.

November 9, 1900.)

Headnote

Trial—Pleading—Amendment.

Defendant should be allowed to set up, by way of supplemental answer, a settlement made with defendant, where the case had not reached trial, and there was no evidence that any injury had been sustained in consequence of defendant’s delay in making motion for such privilege.

Appeal from special term.

Action by Fortunato Yarriale against the Metropolitan Street Railway Company. From an order denying defendant’s motion for leave to serve a supplemental answer, it appeals.

Reversed.

Argued before YAN BRUNT, P. J., and HATCH, RUMSEY, .McLaughlin, and ingraham, jj.

p. 560

Charles F. Brown, for appellant.

Charles G-. F. Wahle, for respondent.

I think this motion should have been granted. The case is not different from that of O’Brien v. Railway Co., 27 App. Div. 1 , 50 N. Y. Supp. 159 . The plaintiff in the action has settled with the defendant, and there is no reason why the defendant should not be allowed to set up, by way of supplemental answer,, the fact of such settlement. The loches are not such as to justify the court in denying the motion. The case has not yet been reached for trial, and there is no evidence that the plaintiff’s attorneys have sustained any injuries in consequence of the delay in making this motion. The order appealed from should be reversed, and the defendant allowed to serve a supplemental answer, upon payment of all costs from the beginning of the action to the present time. All concur.