McAndrew v. Lake Shore & Michigan Southern Railway Co. — 53 N.Y. St. Rep. 436

Majority

p. 436

Alexander McAndrew, Resp’t, v. The Lake Shore & Michigan Southern Railway Co., App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1893.)

Headnote

Pleading—Supplemental answer.

Plaintiff brought two actions against defendant arising out of the same accident; one for injuries to himself, which has been tried and judgment recovered and satisfied, and this one for injuries to his horses, wagon and harness. Held, that while defendant could have set up in each case the pendency of the other action, or by motion have effected a consolidation of the two actions, he could not be allowed, by supplemental answer, to * set up the judgment in the other action as a bar to a recovery in this.

Appeal by the defendant, the Lake Shore & Michigan Southern Railway Company, from an order of the special term of Erie county, dated June 13, 1892, denying its motion for leave to serve a supplemental answer to the complaint

Charles A. Pooley, for app’lt; George E. Towne, for resp’t.

It appears that this plaintiff brought two actions against the defendant to recover damages for alleged negligence growing out of the same accident, one of them being for personal injuries sustained by the. plaintiff, and the other for the injuries and damage done to his horses, wagon and harness. The action for personal injuries was tried in September, 1891, at the Chautauqua circuit, and resulted in a verdict for the plaintiff, and the judgment entered thereon has since been paid and satisfied by the defendant. Thereafter the defendant made a motion at the special term for an order in the action brought to recover for injuries to the plaintiff’s personal property for leave to serve an amended or supplemental answer by which it was sought to set up the judgment in the former action as a bar to any recovery in the second action. From an order denying such motion this appeal is taken.

Section 544 of the Code of Civil Procedure provides, “ Hpon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a

p. 437

supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made ; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof.’

We do not think that the defendant brings itself within the spirit of this section of the Code. Undoubtedly it was competent for the plaintiff to have joined in the same complaint both causes of action, but not having done so there was open to the defendant one of two courses to pursue; first, it being evident that both causes of action grew out of the same casualty, the defendant could have set up in each case the pendency of the other action, Secor v. Sturgiss, 16 N. Y., 554 ; Nathans v. Hope, 77 id., 22 ; Lorillard v. Clyde, 102 id., 59 ; 1 St. Rep., 155 ; or, secondly, upon motion to the court, it could have effected a consolidation of the two actions. Code, § 817.

The order appealed from should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Lewis and Haight, JJ., concur.