Franck v. Byron W. Greene, Jr., Co.

Jenks, J.: The defendant appeals from an order of the. Special Term that denies a. motion for leave to serve a supplemental answer. The action is to recover damages for a- breach of a contract to remove certain buildings. The answer is, in effect, a general denial. The proposed supplemental answer pleads that the defendant sued the plaintiff in the Municipal Court for.work, labor and services incident to the removal of the buildings, on the groiind that the plaintiff had failed to perform the contract on his part; that after trial . the defendant recovered a judgment; that such judgment is a bar, and that the doctrine of res adjtidieata applies. This action was begun on December 24, 1908, and issue was [381] joined on January 13, 1909. It appears that the action in the Municipal Court was begun on December 30,1908; issue was joined, trial was liad and judgment was rendered in October, 1909. The judgment, then, was rendered after this action was begun, and if it was that of a competent court determining the matters in controversy or a part thereof it is the subject of a supplemental answer. (Code Civ. Proc. § 544.) Upon such an application the court does not forestall the trial court to determine the effect of the proposed plea. It but decides whether the plea should be tried by the trial court. (Conried v. Witmark, 73 App. Div. 185 ; Silver & Co. v. Waterman, 122 id. 373.) We cannot say that the plea is bad or frivolous, for it appears that the adjudication in the Municipal Court deals with the subject-matter of this action and touches the point of the contract. And the affidavit of the plaintiff’s attorney shows that the plaintiff sought to stay the Municipal Court action to the end. that all the matters in dispute be adjudicated in this action. The judgment of the Municipal Court could not be available as a defense in this action unless pleaded, and hence it was necessary that the defendant apply for a supplemental pleading. (Lytle v. Crawford, 69 App. Div. 273, 281.) The learned counsel for the respondent contends that the motion was not meritorious because a stipulation was made for extension of the defendant’s time to amend its answer until February, 1909, and that an amended answer was not served. But the judgment which the defendant would set up was not rendered until October-1909. And it is also argued that the practice of the defendant is indicative of bad faith". We see nothing more than tactics which are frequently employed, and on the other hand it appears that the application to plead the judgment was made within a very "short time after it was rendered. We think that a proper exercise of discretion requires the granting of the motion, and hence we reverse the order, with ten dollars costs and disbursements, that the Special Term may dispose of it in accord with this opinion. Hirschberg, P. J., Burr, Thomas and Carr, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and case remitted to the Special Term for disposition in accordance with opinion.