Bank of the Metropolis v. Lissner

6 A.D. 378, 40 N.Y.S. 201, 74 N.Y. St. Rep. 764

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Per Curiam :

In spite cf the mandatory language of section 544 of the Code of Civil Procedure, it is nevertheless within the discretion of the court to grant applications of this kind or to refuse them (Fleischmann v. Bennett, 79 N. Y. 579), and they will be refused whenever it appears that an injustice would be worked by allowing a supplemental answer to be served. (Holyoke v. Adams, 59 N. Y. 237.) It is quite clear in this case, we think, that it woúld be unjust so far to decide the question of the admissibility of this evidence as might even inferentially be done by permitting the supplemental answer to be. served. No injustice can be done to the defendant by denying this motion, because if the adjudication in the former action is admissible in this case, it will have the same effect when proved as evidence as it would if pleaded and proved after the pleading had been served. (Krekeler v. Ritter, 62 N. Y. 372.)

The order is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Van Brunt, P. J., Barrett, Rumsey, O’Brien and Ingraham, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.