Williams v. Hays — 23 N.Y. St. Rep. 489

Majority

p. 489

Paul Williams, App’lt, v. William Hays, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

Pleading—Right to serve supplemental pleading—Code Crv. Pro., § 544.

The right to serve a supplemental pleading cannot be properly withheld from a party where timely asserted, 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.

Appeal from an order permitting the defendant to serve a supplemental answer.

p. 490

George A. Black, for app’lt; Goodrich, Beady & Goodrich, for resp’t.

The defendant in this action, prior to the beginning thereof, brought an action in the superior court of the city of New 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 many 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 file 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.

Yak Brunt, Ch. J., concurs; Bartlett, J., concurs in result.