Goldberg v. Kaplan

126 A. 329, 101 Conn. 432, 1924 Conn. LEXIS 131

• Court: Supreme Court of Connecticut
• Decided: October 21, 1924
• Status: Published

Opinion

Curtis, J.

The defendant’s reasons of appeal allege that the granting of the motion to strike out paragraphs four to ten inclusive of the amended answer was erroneous, and this is the only ground of error relied upon.

The plaintiff claims that the allegations of the paragraphs stricken out were in substance merely repetitions, in a substituted answer, of allegations set up in a prior answer and found insufficient upon demurrer. If this be true, the motion to strike out was properly granted, for it is a fundamental principle of our system of pleading, that “parties cannot be permitted to waste the time of courts by the repetition in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings.” Hillyer v. Winsted, 77 Conn. 304, 306, 59 Atl. 40.

We find that this claim of the plaintiff is not true. In the defense demurred to and found insufficient, there was no allegation of an agreement made between Kaplan and the plaintiff relating to the discharge or settlement of the mortgage and note. There is an allegation in that defense that the defendant Kaplan agreed that the plaintiff (Goldberg) should institute foreclosure proceedings on the mortgaged premises, and it is further alleged that the plaintiff did institute such foreclosure proceedings. It is apparent that these allegations as'to the plaintiff do not constitute allegations of an agreement entered into by Kaplan and the plaintiff which would discharge Kaplan from his obligations as an indorser of the note to the plaintiff.

In the amended answer, on the contrary, there is an allegation of an agreement made between Kaplan and the plaintiff, which Kaplan alleges he carried out, and he claims that thereby he was, in effect, discharged from further liability on the Stein note held by the plaintiff. These allegations could not reasonably be held to be identical with the allegations of the original second defense, and hence merely the repetition of an answer found insufficient on demurrer.

There was error in granting the motion to strike out, and the case is remanded with directions to set aside the judgment, reinstate the amended answer, and proceed according to law.

In this opinion the other judges concurred.