H. Batterman Co. v. Barwin Realty Co.

Order modified so as to sustain the demurrer to the second defense, and so as to give to the plaintiff leave within twenty days to serve an amended complaint as it may be advised, upon payment of the costs of the action to date, without costs of the appeal; and as so modified affirmed, without costs, upon the ground that we consider that under Giles v. Austin (63 N. Y. 486) the plaintiff should be permitted to maintain this action if. any substantial facts establishing its alleged equity to be relieved from forfeiture, if such be proven, occurred after the service of the supplemental answer in the ejectment action. If, however, the defendant elect at the settlement of the order hereon to give in the ejectment action a stipulation that the defendant therein may, within twenty days, make and serve in that action a supplemental answer as it may be advised, such leave to serve an amended complaint herein need not be given. Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred.