Hyperlawhypertext legal database Avery v. Starbuck 22 N.Y. St. Rep. 430

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Avery v. Starbuck

22 N.Y. St. Rep. 430 Court N.Y. Super. Ct. Decision date 1889-03-05 English

Delivered by Sedgwick, Ch. J.

Contents

Majority

p. 430
Thomas C. Avery, Resp’t, v. William H. Starbuck, App’lt.
(New York Superior Court, General Term,
Filed March 5, 1889.)

Headnote

Practice—Supplemental answer—"When leave to serve refused.
A motion to allow a defendant to serve a supplemental answer pleading in bar a judgment recovered in his favor, was properly denied, where it appeared that the answer proposed could not sustain the defense by way of bar upon the facts.
Appeal from order denying defendant’s motion for leave to file a supplemental answer.
George H. Adams, for app’lt; Joseph F. Mosher, for resp’t.

—The action was for work and material furnished to defendant for a certain yacht. The defendant answered. Afterwards he made the motion below, which.

p. 431
was to allow him to serve a supplemental answer alleging that since the former answer, judgment had been entered in favor of defendant, in a suit in the United States district ■court in which the plaintiff was the present plaintiff, and alleging that the suit in the district court was brought upon ■the same grounds and for the same relief as claimed in this •action.

On the motion it indubitably appeared that _ the suit in the district court was terminated in favor of this defendant without any adjudication of whether or not the plaintiff had a claim for work and material, and that the proceeding being in rem, the actual adjudication was that if the plaintiff had a personal claim he had no lien upon the vessel, and this led to a dismissal of the libel.

I am of opinion that it so certainly appeared that the answer proposed could not sustain the defense by way of bar upon the facts, that the judge was right in not allowing an insubstantial defense, but I also take into consideration that the defendant will have a right upon the trial to present the same record as evidence of the facts in issue, and with conclusive effect if the appellant should be right in his present assertion as to the effect of the record in the ■district court. Marston v. Swett, 66 N. Y., 206 ; Krekeler v. Ritter, 62 id., 372.

The order should be affirmed, with ten dollars costs.

Truax and Dugro, JJ., concur.