Hasbrouck v. Disbrow — 24 N.Y. St. Rep. 428

Majority

p. 428

Stephen Hasbrouck, App’lt, v. Josephine L. Disbrow, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 13, 1889.)

Headnote

1. Pleading—When leave to serve supplemental answer denied.

The allowance of a supplemental answer is not a matter of strict right, and when it appears that such a permission to plead will work injustice, it will be denied.

2. Same—When supplemental plea will not be granted.

Where it appeared that the matters contained in a complaint were pleaded as a counter-claim in a suit subsequently brought in another county by the defendant, in which judgment by default passed against the plaintiff; that the default was taken by consent, but the apparent adjudication against the present claim flowing from such default was overlooked, Meld, that leave to Ule a new plea should not be granted.

Appeal from order of the Kings special term, granting leave to serve a supplemental answer.

Francis Larkin, for app’lt; James Flynn, for resp’t.

The allowance of a supplemental answer is not a matter of strict right.

When it is made to appear that such permission to plead will work injustice, it will be denied.

Examining the case before us, we find that the matters contained in the complaint were pleaded as a counter-claim in a suit subsequently brought in another county, by defendant, in which judgment by default passed against this plaintiff; the record of which is now sought to be pleaded in bar to the present action.

Ordinarily such defenses are greatly favored, as the public time should not be wasted upon controversies once determined. But in the present case the question apparently adjudicated has not in fact been passed upon.

The negotiations which led to the taking of the default without disposition are not disputed, and it is entirely clear that the apparent adjudication against the present claim flowing from such default was overlooked. Had it been perceived, this claim. would have been withdrawal from the record in that action, and the present question would never have arisen.

Under these circumstances leave to file a new plea should not be granted. What effect the judgment will have, if

p. 429

offered in evidence without being pleaded, is not before the court, and need not be discussed.

A certain measure of strictness may have its advantages; but the court will not, if it can be avoided, visit upon a litigant the loss of a claim of $8,000, because an attorney momentarily lost sight of a remote consequence of an arrangement in which the opposite party surrendered nothing.

Order appealed from reversed, with ten dollars costs and ■disbursements in this court, and ten dollars costs of special term.

All concur.