Majority
p. 463William H. Schmohl, Resp’t, v. Giuseppe Fusco, Impl’d, App’lt.[1] (New York Common Pleas, General Term, Filed January 4, 1892.)
Headnote
1. Appeal—Dismissal—Joint debtors.Where, pending an appeal from an order refusing leave to serve a supplemental answer setting up the recovery of judgment against the defendant’s joint contractor, said judgment is vacated, the case stands as though no judgment had been rendered, and the appeal should be dismissed.
2. Same—Discretionary order.
Such order of the city court of New York, denying motion for leave to serve a supplementary answer because it was “not in furtherance of justice, but was an effort to defeat it,” is a discretionary one and not appeal-able to the common pleas.
Appeal from order of the general term of the city court, dismissing appeal from an order at special term. Action against copartners on a firm liability. Defendant Fusco appeared and answered. Defendant Adam demurred to the complaint for insufficiency in substance, and the demurrer being overruled, judgment was entered against him. Thereupon defendant Fusco applied for leave to serve a supplemental answer pleading this judgment against his co-contractor in bar of the action against him. The motion was denied, and an appeal to the general term was dismissed. Before notice of that appeal the judgment against Adam was vacated.
Louis 0. Van Boren, for app’lt; Bdward T. Bartlett, for resp’t
For two separate and sufficient reasons the order ■on appeal must be affirmed.
I. On the vacatur of the judgment against Adam, the case stood as if such judgment had never been rendered; and the liability of Fusco continued with all original remedies for its enforcement Sinclair v. Hollister, 41 St. Rep., 349 . Hence, the proposed supplemental answer would have offered no defense to the action in favor of Fusco, and its disallowance, therefore, is ah inevitable and unimpeachable conclusion.
p. 464
denied in the exercise of judicial discretion, Fleischmann v. Bennett, 79 N. Y., 579 ; Wakefield v. The Company, 13 Daly, 349 ; and “ upon appeal from an order which may have been matter of discretion, the appellant must show that it was made upon a ground that did not authorize the court to exercise any discretion.” Cushman v. Brundrett, 50 N. Y., 296 ; McKenna v. Bolger, 94 id., 641; Mills v. Hildreth, 81 id., 91. Indeed, it appears by the opinion below that the application was refused expressly because it “ was not in furtherance of justice, but was an effort to defeat, it.” The adjudication in Sinclair v. Hollister, supra, decided by us at the November term, is conclusive against the appeal.
Order affirmed, with costs.
Daly, Oh. J., concurs.