Williams v. Hays , 23 N.Y. St. Rep. 489 ( 1889 )

MAC031BER, J

The defendant in this action, prior to the beginning thereof, brought an action in the superior court of the city of Yew York, against the Phoenix Insurance Company, upon a policy issued to him as the owner of three-sixteenths of the brig Emily T. Sheldon. In that action the insurance company, while admitting the issuing of the policy, put in issue, among other things, the seaworthiness, sailing, and wreck of the vessel. That action resulted in a verdict in behalf of the plaintiff therein for $1,943.72. Subsequent to the beginning of the above-mentioned action, this action was brought upon a claim, assigned to this plaintiff by the Phoenix Insurance Company, of $916.98, being for money paid by that company to Parson & Loud, for the loss of the same brig, under a policy issued by such company to Parson & Loud, who were the owners of one-sixteenth-of the ship, and this action is based upon the claim that the loss of said brig was due to the negligence, carelessness, and misconduct and improper navigation of this defendant. After the trial and decision of the case in the superior court, a motion for leave to tile a supplemental answer in this case was made, and was granted. It is obvious that the judge at special term properly exercised the discretion reposed in the court to permit the filing of a supplemental pleading, setting up matters happening after the filing or service of the original pleading. This right, under section 544 of the Code of Civil Procedure, unless it be shown that the object of the application is to obtain delay, or that it is not otherwise made in good faith, or unless the proposed pleading is manifestly frivolous, cannot be properly withheld from a party when timely asserted. The sufficiency in law of the supplemental pleading is not passed upon in this class of motions further than as above stated. The order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs. Bartlett, J., concurs in result