Schmohl v. Fusco , 42 N.Y. St. Rep. 463 ( 1892 )

Pryor, J.

For two separate and sufficient reasons the order on appeal must be affirmed.

1. On the vacatur of the judgment against Adam, the case stood as if such judgment had never been rendered, and the liability of Fusco continued, with all original remedies for its enforcement. Sinclair v. Hollister, (Com. Pl. N. Y.) 16 N. Y. Supp. 529. Hence the proposed supplemental answer would have offered no defense to the action in favor of Fusco, and its disallowance, therefore, is an inevitable and unimpeachable conclusion.

2. Leave to serve the supplemental answer may have been denied in the exercise of judicial discretion, (Fleischmann v. Bennett, 79 N. Y. 579; Wakefield v. American Surety Co., 13 Daly, 349;) and, “upon appeal from an order which may have been matter of discretion, the appellant must show that it was made upon a ground that did not authorize the court to exercise any discretion,” (Cushman v. Brundrett, 50 N. Y. 296; McKenna v. Bolger, 94 N. Y. 641; Mills v. Hildreth, 81 N. Y. 91.) Indeed, it appears by the opinion below that the application was refused expressly because it “ was not in furtherance of justice, but was an effort to defeat it.” The adjudication in Sinclair v. Hollister, supra, (decided by us at the November term,) is conclusive against the appeal. Order affirmed, with costs. All concur.