Guliano v. Whitenack

Headnote

Pleading — Supplemental answer — Terms.

After an action for negligence had been upon the calendar and marked off the term, the plaintiff, after a delay of eighteen months, made a motion to restore it, which was granted on condition that he accept service of a supplemental answer setting up that, on a discovery of an erroneous admission in the original answer, plaintiff, not caring to prosecute the action,

executed a general release and re-entered defendant’s employment. Held, that the allowance of the supplemental answer was a proper exercise of discretion, but that it should have been on condition of payment by defendant of all costs and disbursements to date.

Appeal by plaintiff from order made by Judge Bischoff on December 24,1892, restoring this action to the calendar, the same having been previously reserved generally, upon plaintiff’s stipulating to accept service of a supplemental and amended answer.

This action was commenced prior to October 10, 1889. It is an action to recover $3,000 damages for personal injuries which the plaintiff alleges he sustained from defendant’s negligence.

The complaint alleges that on August 31, 1889, the defendant, a contractor and builder, was. engaged in constructing an oven; that the plaintiff was a laborer in his employment, who, upon that day, entered the oven under his master’s direction and was injured, owing to the negligent manner in which the oven had been constructed.

The defendant answered the complaint on November 21, 1889. The action first appeared upon the day calendar on December 17, 1890 ; it was then marked “ off term,” owing to the absence and inattention to the calendar of the plaintiff’s attorney.

The plaintiff's attorney made no effort to restore it to the calendar until April 15, 1891. It reappeared upon the day calendar on May 4th, was passed several days in May and reappeared in June. On June 11th it was marked “ off term " by the presiding judge.

No application to restore the case to the calendar, after this disposition of it on June 11, 1891, was made until December 17, 1892, a period of upwards of eighteen months.

When the action was nearing trial in May, 1891, the defendant’s counsel discovered that an erroneous admission had .crept into the answer. The original answer had inadvertently admitted that the plaintiff had been directed by the defendant to enter the oven; the amendment sought was the substitution of a denial in place of the admission. At the time of this discovery the plaintiff, not caring to prosecute the suit, executed a general release to the defendant and again entered the latter’s employment.

These facts the defendant sought to set up by supplemental and amended answer.