Murphy v. Gate

236 A.D. 708

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1931
• Status: Published

Opinion

Order directing plaintiffs to accept service of answers of respondents reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The plaintiffs brought an action for the foreclosure of a mortgage. The defendants George Gate and Leonardson interposed answers and a trial was had, resulting in a decision in favor of the plaintiffs. On the trial it developed that defendant Gate held title to the property by an unrecorded deed and had a wife living. Therefore, the plaintiffs moved, before entering judgment, for leave to serve a supplemental summons bringing her in as a party defendant. With the motion papers he served on said defendant his proposed supplemental complaint, incorrectly denominated as an “ amended complaint.” So far as it appears, it tendered no new issue and after leave was granted to bring in said defendant no copy of the new complaint was served on the defendants. Nevertheless they insisted upon serving amended answers, and the order appealed from gave them that right. The issues between the appellants and these respondents have been fully tried and the decision on that trial is not affected by bringing in the new party. (Civ. Prac. Act, § 245.) The relief of the respondents, if any, is by motion to set aside the decision and reopen the trial. Lazansky, P. J., Kapper, Hagarty, Scudder and Davis, JJ., concur.