Schmohl v. Fusco — 37 N.Y. St. Rep. 687

Majority

p. 687

William H. Schmohl, Resp’t, v. Giuseppe Fusco, Impl’d, App’lt.

(City Court of New York, General Term,

Filed March 10, 1891.)

Headnote

1. Pleading—Bab.

Where judgment is directed on demurrer of one of two joint debtors, and the action severed and directed to proceed as to the other, leave should not be granted to amend the answer of the other defendant by pleading such judgment in bar.

<3. Appeal—Dismissal op.

Where such judgment was reversed before appeal from the order refusing leave to amend, such appeal will be dismissed as unnecessarily taken.

Appeal by defendant Fusco from an order denying motion made for leave to serve a supplemental answer pleading in bar a judgment entered against the co-defendant of the appellant, upon the theory that such recovery against one of two persons jointly liable exonerates the other from liability.

L. O. Van Doren and L. C. Waehner, for app’lt; Bartlett, Wilson & Hayden, for resp’t.

Technical pleas to defeat the collections of honest demands are not to be encouraged. Courts should not be astute m devising means for assisting debtors to deprive their creditors of their just dues, but should rather lend their aid to defeat any such scheme or intention.

Two defendants were sued. Angelo Adam, one of them, demurred, and an order was subsequently made directing judgment on the demurrer in favor of the plaintiff. An order was next obtained severing the action and permitting judgment to be entered against Adam on the demurrer, and directing that the action proceed as to Giuseppe Fusco, the other defendant, as if he had been -sued alone. Judgment was thereupon entered against Adam, and Fusco sought leave to plead that judgment in bar to the further prosecution of the action against him. The motion was properly denied.

The application was not. in furtherance of justice, but an effort to defeat it, and the order should be affirmed on the merits.

But apart from this, it appears that since the argument below •and before the appeal was taken, the judgment against Adam has been vacated by an order entered on consent signed by the plaintiff’s attorney and the attorney for Adam, of which the defendant Giuseppe Fusco had notice. The appeal by him was therefore unnecessarily taken, and if the appellant succeeded upon it he could acquire no beneficial purpose. The judgment he desires to plead in bar has been set aside, as if it had never existed, and the appellant is, of necessity, left to continue his defense on the merits.

For these reasons we will, instead of affirming the order, as we otherwise would have done, dismiss the appeal taken, without costs.

McGown and Van Wyck, JJ., concur.