Avery v. Starbuck

Superior Court of New York

Avery v. Starbuck

4 N.Y.S. 630, 1889 N.Y. Misc. LEXIS 1641

CourtThe Superior Court of the City of New York and Buffalo

DecidedMarch 5, 1889

StatusPublished

This text of 4 N.Y.S. 630 (Avery v. Starbuck) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avery v. Starbuck, 4 N.Y.S. 630, 1889 N.Y. Misc. LEXIS 1641 (superctny 1889).

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Opinion

Sedgwick, 0. J.

The action was for work and material furnished to defendant for a certain yacht. The defendant answered. Afterwards he made the motion below, which was to allow him to serve a supplemental answer, alleging that since the former answer judgment had been entered in favor of defendant in a suit in the United States district court, in which the plaintiff was the present plaintiff, and alleging that the suit in the district court was brought upon the same grounds, and for the same relief, as claimed in this action. On the motion it indubitably appeared that the suit in the dis[631]*631trict court was terminated in favor of this defendant, without any adjudication of whether or not the plaintiff had a claim for work .and material, and that, the proceeding being in rem, the actual adjudication was that if the plaintiff had a personal claim he had no lien upon the vessel; and this led to a dismissal of the libel.

I am of opinion that it so certainly appeared that the answer proposed could not sustain the defense by way of bar upon the facts that the judge was right in not allowing an insubstantial defense; but I also take into consideration that the defendant will have a right upon the trial to present the same record as evidence of the facts in issue, and with conclusive effect, if the appellant should be right in his present assertion as to the effect of the record in the district court. Marston v. Swett, 66 N. Y. 206; Krekeler v. Ritter, 62 N. Y. 372. The order should be affirmed, with $10 costs. All concur.

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Sedgwick, 0. J.

The action was for work and material furnished to defendant for a certain yacht. The defendant answered. Afterwards he made the motion below, which was to allow him to serve a supplemental answer, alleging that since the former answer judgment had been entered in favor of defendant in a suit in the United States district court, in which the plaintiff was the present plaintiff, and alleging that the suit in the district court was brought upon the same grounds, and for the same relief, as claimed in this action. On the motion it indubitably appeared that the suit in the dis[631]*631trict court was terminated in favor of this defendant, without any adjudication of whether or not the plaintiff had a claim for work .and material, and that, the proceeding being in rem, the actual adjudication was that if the plaintiff had a personal claim he had no lien upon the vessel; and this led to a dismissal of the libel.

I am of opinion that it so certainly appeared that the answer proposed could not sustain the defense by way of bar upon the facts that the judge was right in not allowing an insubstantial defense; but I also take into consideration that the defendant will have a right upon the trial to present the same record as evidence of the facts in issue, and with conclusive effect, if the appellant should be right in his present assertion as to the effect of the record in the district court. Marston v. Swett, 66 N. Y. 206; Krekeler v. Ritter, 62 N. Y. 372. The order should be affirmed, with $10 costs. All concur.

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Bluebook (online)

4 N.Y.S. 630, 1889 N.Y. Misc. LEXIS 1641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avery-v-starbuck-superctny-1889.

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