Bank of the Metropolis, Appellant, v. Jacob L. Lissner, Respondent. No. 1

Bank of the Metropolis, Appellant, v. Jacob L. Lissner, Respondent. No. 1. Supplemental answer — leave to serve it, discretionary— a former adjudication need not be pleaded. It is within the discretion of the court to grant or refuse leave to serve a supple: mental answer in an action, and such an application will he refused Whenever it appears that injustice will he done hy permitting such an answer to he served. •Where it is desired to interpose,, hy such supplemental answer, the plea of a former, ad judication, no prejudice can arise to the defendant from, a denial of the motion, as the former adjudication would be as effective as evidence if not pleaded as it would be if- set up, in the answer. " . Appear by the plaintiff,, the Bank of the Metropolis, -from an .order of the Supreme Court, made at the New York Special Term and entered-in the office of "the clerk of the county of New. York on the 22d day of May, 1895,. granting the defendant leave to serve a supplemental answer, setting up as a' bar to the present action, a judgment recovered in a former action between the same parties. George Putnam Smith, for the appellant. Damid Leventritt, for the respondent. [MAJORITY — Per Curiam :] 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.