1108

and 123 New York State Reporter

lia Jones and by George E. Jones against the | Y. Supp. 201; Barstow v. Hansen, 2 Hun, 334; Brooklyn Heights Railroad Company. H. F. Ives, for appellant. Don R. Almy, for respond

ents.

PER CURIAM. Judgments and orders reversed, and new trial granted, costs to abide the event, on the ground that, by the decision rendered herewith on the appeal from the order denying the motion to allow supplemental answer to be served, the issue has been changed.

HOOKER, J. (dissenting.) These actions were commenced by service of summons and complaint on the defendant on or about the 15th day of April, 1902. That of Athalia Jones was brought to recover damages for personal injuries alleged to have been received by her while a passenger on one of the defendant's cars, and that brought by George E. Jones to recover for the loss of the services of his wife, Athalia. The accident occurred on the 12th day of March, 1902. On or about the 4th day of February, 1903, the defendant settled the actions directly with the plaintiffs upon the payment of $8 to the wife and $2 to the husband. The case appeared on the so-called "reserve calendar" on the 30th day of November, 1903, at which time it was marked "ready for trial" without objection. A few days thereafter the case again appeared on the ready calendar, and the defendant's attorney and the attorney for the plaintiffs was both stated to the court that the case ready for trial. The first intimation the attorney for the plaintiffs had of the settle

to serve

on the was about noon ment of the cases second day before this application for leave to serve supplemental answers was made. It appears from the affidavit read in opposition to the motion that plaintiffs' attorney had subpoenaed all of the witnesses for the trial of the case, and held them at court for a period of four or five days; that he had been put to considerable expense in preparing the cases for trial, and had employed counsel to assist him; that counsel had been present ready to proceed with the trial of these cases on the 8th and 9th days of December. The plaintiffs contended upon the argument of the motion that leave supplemental answers should be denied, upon the ground that the defendant had been guilty of gross laches. The motions were denied, and defendant appeals to this court. The right to serve supplemental answer is not a legal right, and rests with the sound discretion of the court. v. Colton, 12 Misc. Rep. 308, 34 N. Y. Supp. 35. Although, under section 544 of the Code of Civil Procedure, it seems to be mandatory, it is within the discretion of the court to grant or refuse an application for leave to serve supplemental pleadings. O'Brien v. Met. St. R. Co., 27 App. Div. 1, 50 N. Y. Supp. 159. This discretion, like other discretions at Special Term, should not be interfered with, except we can clearly see that improper result has been reached. Patterson v. Hare, 74 Hun, 269, 26 N. Y. Supp. 626. Unexplained and unexcused laches have long been held to require a denial of motions of this character. Bank of Metropolis v. Lissner, 6 App. Div. 378, 40 N.

Haas

McDonald v. Davis, 12 Hun, 95; Holyoke v.
Adams, 59 N. Y. 233. The delay in this case
was from the 4th day of February, 1903, the
date of the alleged settlement, until the 8th day
of December, 1903, the date upon which the
last few days of this period of time the defend-
order to show cause was granted. During the
ant allowed the plaintiffs' attorney to prepare
sel, and incur other expenses, without any in-
for trial, subpoena his witnesses, employ a coun-
timation or suggestion to him that the cases
had been settled. He was not only lulled to
sleep by the nonaction of defendant's attorney
in respect to informing him of the alleged set-
tlement, but was affirmatively led to believe
that the issues were alive, and would be tried
as soon as the business of the court would per
mit his case to be reached; for it appears u
controverted in the affidavit that the attorney
for the defendant answered "ready" on one
or more occasions when the calendar was being
made up. In Medbury v. Swan, 46 N. Y. 29,
the delay to plead a discharge in bankrupte
did not exceed 15 months, and yet the court
for that reason, in the exercise of its discre
See note of this
tion, denied leave to present it as a defense by
way of supplemental answer.
case in Barstow v. Hansen, 2 Hun, 236. The
only circumstances the defendant claims to ex
ist by way of excuse or explanation of the
laches is that it is the custom of the defen
ant, when it settles cases directly with the pas
ties, without the knowledge of their attorneys
to compensate them for their liens when the
appear for trial on the day calendar of this
court. Such circumstances do not make out as
excuse. The practice is rather, on the other
hand, to be criticised, as actually incumbering
the trial calendars of this court with cas
which have been settled and are dead issues.
The discretion exercised at Special Term was
such that we do not feel at liberty to interfere
The orders appealed from should be affirmed,
with costs.

HIRSCHBERG, P. J., concurs.

JONES, Respondent, v. NEW YORK & ◊ C. RY. CO., Appellant. (Supreme Court, pellate Division, Second Department. July 1904.) Action by Julia Jones against the New York & Queens County Railway Company. No opinion. Judgment and order unanimously affirmed, with costs.

KABLE, Respondent, v. ROCHESTER GAS ELECTRIC CO., Appellant. (Supreme & Court, Appellate Division, Fourth Department Action by Sebastian Kable July 6, 1904.) against the Rochester Gas & Electric Company, No opinion. Judgment and order affirmed, with costs.

Court, Appellate Division, First Department. June 29, 1904.) Action by Jacob Levin and another against James H. McLean and another. No opinion. Motion denied, on payment of $10 costs of motion and $10 costs of term.

KELLY, Appellant, ▼. BROOKLYN LEVIN et al. v. McLEAN et al. (Supreme HEIGHTS R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by James J. Kelly against the Brooklyn Heights Railroad Company. No opinion. Order setting aside verdict and granting new trial affirmed, with costs. In re KING. (Supreme Court, Appellate Division, Third Department. September 30, 1904.) In the matter of the application of H. Prior King, as executor, etc., for a discovery against Eugene L. Ashley. No opinion. Motion denied.

KIPP, Respondent, v. BURHANS, Appellant. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) Action by William S. Kipp against Webster H. Burhans. No opinion. Judgment affirmed, with costs.

In re LEVY et al. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) In the matter of the judicial settlement of the account of proceedings of Julia Levy and William Hyams, as executors, etc., of Philip Levy, deceased. No opinion. Decree of the Surrogate's Court of Kings county (83 N. Y. Supp. 647), in so far as appealed from, affirmed, with costs.

INDEPENDENT ORDER BNAI BRITH, ReLEVY, Appellant, v. DISTRICT NO. 1 OF spondent. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by KOCH et al., Respondents, v. CITY OF MT. Anna Levy against district No. 1 of the IndeVERNON, Appellant. (Supreme Court, Appel-pendent Order of Bnai Brith. L. Moschowitz, late Division, Second Department. September for appellant. W. Bernard, for respondent. No 29, 1904.) Action by Elise Koch (sometimes opinion. Order affirmed, with $10 costs and known as Elizabeth Koch), Margaretha Koch, Elisa Neis, and Lena Birney against the city of Mt. Vernon. No opinion. Judgment affirmed, with costs.

KRONOLD, Appellant, v. CITY OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First Department. July 13, 1904.) Action by Adolph S. Kronold against the city of New York. T. Sutre, for appellant. T. Farley, for respondent. No opinion. Order affirmed, with costs.

KUBE, Respondent, v. ATLANTIC TERRA COTTA CO., Appellant. (Supreme Court, Appellate Division, Second Department. September 29, 1904.) Action by Karl Kube against the Atlantic Terra Cotta Company. No opinion. Judgment and order unanimously affirmed, with costs.

KUBE, Respondent, v. ATLANTIC TERRA COTTA CO., Appellant. (Supreme Court, Appellate Division, Second Department. September 29, 1904.) Action by Karl Kube against the Atlantic Terra Cotta Company. No opinion. Order denying motion for new trial unanimously affirmed, with costs.

LA FEMINA Y. ARSENE et al. (Supreme Court, Appellate Division, Second Department. June 24, 1904.) Action by Gennaro La Femina against Arsen Arsene and another. No opinion. Motion denied.

LANE, Respondent, v. NEW YORK, N. H. & H. R. CO., Appellant, et al. (Supreme Court, Appellate Division, Second Department. June 24, 1904.) Action by Matthew Lane against the New York, New Haven & Hartford Railroad Company and another.

PER CURIAM. Motion to dismiss appeal granted, with $10 costs, on the authority of Popham v. Twenty-Third St. R. R. Co., 48 N. Y. Super. Ct. 229, affirmed 89 N. Y. 633.

disbursements.

LEVY, Appellant, v. UNITED STATES GRAND LODGE ORDER BRITH ABRAHAM, Respondent. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by Anna Levy against the United States Grand Lodge of Order of Brith Abraham. L. Moschowitz, for appellant. A. D. Lind, for respondent. No opinion. Order affirmed, with $10 costs and disbursements.

LIEB v. MORGENSTEIN et al. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by Henry Lieb against Abraham J. Morgenstein and Mary Morgenstein. No opinion. Judgment of the Municipal Court affirmed, with costs.

LINK et al., Respondents, v. MCCABE et al., Appellants. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) Action by Helmus F. Link and William H. Link, as executors, etc., against William J. McCabe and Emma J. McCabe. No opinion. Judgment unanimously affirmed, with costs.

LUCIA, Respondent, v. ENRIGHT, Appellant. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by John Lucia against Maurice Enright. No opinion. Judgment of the Municipal Court affirmed, with costs.

In re LYDDON. (Supreme Court, Appellate Division, Fourth Department. July 6, 1904.) In the matter of the application of George Lyddon for a writ of habeas corpus. No opinion. Order dismissing writ of habeas corpus affirmed.

MCCARTHY v. MEANEY et al. (Supreme Court, Appellate Division, Fourth Department. July 6, 1904.) Action by William F. McCarthy against John F. Meaney and others. No opinion. Motion for reargument denied, with $10 costs.

and 123 New York State Reporter

MCCAULEY, Appellant, v. MACKLIN, Re-|, MARTINEZ, Respondent, v. WARD, Appelspondent. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by William McCauley against William C. Macklin. No opinion. Judgment of the Municipal Court affirmed, with costs.

MCDONALD, Respondent, v. NEW YORK & P. TELEPHONE & TELEGRAPH CO., Appellant. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) Action by Peter McDonald against the New York & Pennsylvania Telephone & Telegraph Company. No opinion. Judgment and order unanimously affirmed, with costs.

lant. (Supreme Court, Appellate Division, First Department. July 13, 1904.) Action by Albert Martinez against Patrick Ward. L S Gove, for appellant. H. R. Corey, for respoadent. No opinion. Judgment affirmed wit costs. Appeal from order dismissed, no order appearing in the record.

In re MATHOT. (Supreme Court, Appellate Division, First Department. June 29, 1904 In the matter of William L. Mathot. No opinion. Motion denied, with $10 costs.

MAWSON, Appellant, v. WERMUTH. Respondent. (Supreme Court, Appellate Division. MCGOWAN, Appellant, v. BARNUM, Re-Third Department. June 30, 1904.) Action b spondent. (Supreme Court, Appellate Division, Edward L. Mawson against William Wermath First Department. June 24, 1904.) Action by No opinion. Judgment and order affirmed, with David J. McGowan against Curtis A. Barnum. C. L. Barber, for appellant. C. B. Pierce, for respondent. No opinion. Order modified, by deducting $10 from the recovery, and, as modified, affirmed, without costs.

MCGOWAN, Appellant, v. CITY OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First Department. July 13, 1904.) Action by Bridget M. McGowan against the city of New York. S. P. Cahill, for appellant. T. Farley, for respondent. No opinion. Judgment affirmed, with costs.

McILVAINE V. STEINSON. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by Tompkins McIlvaine against George Steinson.

PER CURIAM. Motion granted as to Hart; otherwise, denied.

MCKENNA, Respondent, v. NEW YORK ELEVATED RY. CO., Appellant. (Supreme Court, Appellate Division, First Department. June 24, 1904.) Action by John McKenna against the New York Elevated Railway Company. A. G. Fox, for appellant. E. M. Felt, for respondent. No opinion. Judgment affirmed, with costs.

In re MeCANN. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) In the matter of the petition of John McCann for the removal of Josiah H. Marshall as a justice of the peace of the town of Horseheads, N. Y. No opinion. Application granted.

MARSH, Respondent, v. STANDARD OIL CO. OF NEW YORK, Appellant. (Supreme Court, Appellate Division, Second Department. July 28, 1904.) Action by Henry Marsh against the Standard Oil Company of New York. No opinion. Judgment and order unanimously affirmed, with costs.

In re MARTIN. In re GRANT. (Supreme Court, Appellate Division, First Department. June 24, 1904.) In the matter of James Martin, and in the matter of one Grant. No opinion. Motion denied.

costs.

MAWSON V. WERMUTH. (Supreme Court, Appellate Division, Third Department. Sept. 30, 1904.) Action by Edward L. Mawse against William Wermuth.

PER CURIAM. Motion for leave to appeal granted, and the following question certifed Was it competent and proper for the respondent to allege and prove upon the trial of this proceeding, in defense thereof, that the jaz ment obtained by Martin Devoy against W liam Wermuth was assigned to Ebenezer Wermuth prior to the issuance by him of the exemtion under which the respondent's real prop erty was sold; and had the county judge ris diction to try that question and determine the validity of the execution sale thereunder?

MAYCUMBER, Appellant, v. BUTTS, Be spondent. (Supreme Court, Appellate Division. Third Department. June 30, 1904.) Action by George Maycumber against Reuben Butts. No opinion. Judgment affirmed, with costs.

=

In re MAYERS. (Supreme Court, Appel late Division, Second Department. July 2 1904.) In the matter of the application of Henry J. Mayers, for admission to the bar. Ne opinion. Application granted.

MEYER, Appellant, v. WEBB, Respondent. (Supreme Court, Appellate Division, First De partment. July 13, 1904.) Action by Arthur L. MarL. Meyer against W. Seward Webb. shall, for appellant. H. B. Anderson, for re spondent. No opinion. Order affirmed, with $10 costs and disbursements.

MILLER et al., Respondents, v. RODE. AP pellant. (Supreme Court, Appellate Division. Second Department. July 28, 1904.) Action by Charles E. Miller and Robert H. Benary against Edward Rode, doing business under the firm name of Rode & Brand. No opinion costs. Judgment of the Municipal Court affirmed, with

MOORE, Respondent, v. NEW YORK & Q. C. RY. CO., Appellant. (Supreme Court, Ap

and 123 New York State Reporter