Citizens' National Bank v. Weston — 62 N.Y. St. Rep. 552

Majority

p. 552

Citizens’ National Bank of Corry, Pennsylvania, Resp’t, v. Abijah Weston et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed October 17, 1894.)

Headnote

1. Pleadings—Answer—Supplemental,

Where a default judgment against the indorsers on a note inadvertently-included a defaulting maker, but was vacated as to him as soon as discovered, a motion by the answering makers for leave to serve a supplemental answer, setting up the entry of judgment against the defaulting maker, was properly denied.

2. Same—Change op venue.

A supplemental answer, which sets up issues to which the testimony of witnesses, for whose convenience a change of venue was obtained, is immaterial, will be denied.

Appeal from an order denying a motion for leave to serve a supplemental answer.

J. H. Waring, for app’lts ; George Clinton, for resp’t.

The action was-to charge the appellants Abijah and Orren Weston and the defendant William W. Weston as the makers of a promissory note, and several other defendants as its indorsers. The complaint alleged a copartnership between the three Westons, and that the note was made by them in their firm name of Weston Bros. The appellants, Abijah and Orren Weston, were the only defendants who appeared in the action. They answered, denying the existence of the copartnership at the time of the execution of the note, and alleging its fraudulent execution and delivery by the defendant William W. Weston in the late-firm name, and that the plaintiff took it with full knowledge of the facts so alleged.

The indorsers being in default, and their liability being several from that of the makers, the plaintiff was entitled to judgment against the former and a severance of the action to proceed against the defendants answering. Code Civ. Proc. § 456. In entering such judgment, the attorney for the plaintiff, by inadvertence or mistake, included the defendant William W. Weston among the defendants against whom judgment was entered on the 20th day of December, 1893. He learned of his mistake on the 15th day of February following, and thereupon applied to the court at special term to vacate the judgment against the defendant William W. Weston, which was done. The proposed supplemental answer simply sets up the recovery of the judgment against the defendant William W. The motion for leave to serve it was denied at special term, on the ground, among others, that the judgment so entered was absolutely void, and therefore of no effect upon the rights of the defendants answering, and that the proposed supplementary answer was inconsistent with the original answer. We

p. 553

áre not quite prepared to say that either of these grounds was tenable. It is, at least, a disputed question on the authorities, whether the judgment entered, against one of the alleged joint debtors was absolutely void. Bank v. Spencer, 19 Hun, 569 , and the cases cited. Nor can we say that the two answers are altogether inconsistent with each other. The original answer denies the allegations of the complaint upon which the existence of a joint liability of the defendants is sought to be established. The proposed supplemental answer would set up new facts which would avoid the joint liability if it ever existed. But we think the motion was properly denied, because the inclusion of the defendant William Weston in the entry of the judgment was merely inadvertent, and the judgment against him was vacated as soon as the mistake was discovered, and before any prejudice to the other defendants (the appellants here) could have resulted therefrom. Moreover, the papers opposing the motion show that, after the entry of the judgment against William, the defendants answering moved for and obtained an order changing the place of trial of the action, for the convenience of witnesses whose testimony would bear only on the issues joined by the original answer, and would be entirely immaterial to the defense proposed by the supplemental answer. The defense so proposed is entirely without merit, and the discretion of the court was well exercised at special term. • The order appealed from must be affirmed. All concur.

So ordered; with $10 costs and disbursements of the appeal.