Citation Numbers: 99 A.D. 267, 90 N.Y.S. 1002
Judges: Ingraham
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/13/2023
This action was commenced on December 30, 1875. Subsequently the case was brought on for trial at Special Term and the
Considering the proceedings that have been taken in this action, the long delay in its prosecution, and the fact that these defendants have had for years an opportunity to make this application, I do not think that when the reference has about terminated, entirely distinct issues should be injected which would cause additional delay in its final disposition. The facts sought to be alleged by this supplemental answer relate to conveyances or transfers of the property in question by the former defendants, whose representatives are now before the court, subsequent to the commencement of the action and the entry of the judgment dismissing the complaint. It is not alleged in the supplemental pleading that these conveyances were made for a valuable consideration and without knowledge of the pendency of this action; nor is it alleged that by these conveyances or transfers of property persons not parties to the action have acquired an interest in the property. It is not perceived how these conveyances or transfers can affect the right of the plaintiffs to a final judgment in accordance with the decision of the General Term. All the rights of these defendants having accrued subsequent to the commencement of the action, they would be subject to the judgment entered therein; and, as I view it, none of the facts alleged in the supplemental answer are material upon the question as to what relief the plaintiffs will be entitled to. The laches of the defendants in making this application should certainly be considered. When, in October, 1903, the application was made at Special Term for an order adding as a party defendant IVIary G. Jones, who had been appointed administratrix of John Jones, deceased, they were bound then to insist upon their right to serve a supplemental answer, if one
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
O’Brien, McLaughlin and Hatch, JJ., concurred; Van Brunt, P. J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.