Peabody v. Germain
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Ruskton Peabody, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 23d day of January, 1899, denying the plaintiff’s motion for leave to serve a supplemental complaint.
1Opinion of the Court
Cullen, J.:
I think the plaintiff should have been allowed to serve a supplémental complaint setting forth his final recovery of judgment in the action brought against the attorney for the underwriters. The second judgment in that action was recovered after this action was at issue, and the plaintiff should not be debarred from pleading it unless the recovery is wholly immaterial and irrelevant. If the question of the effect of the second judgment is a close one and fairly debatable, its determination should be made not on an application to serve a supplemental or amended pleading, but on…
2Cases cited1 opinion
- Gough v. SatterleeAppellate Division of the Supreme Court of the State of New York · 1898