Lyon v. Isett
The Superior Court of New York City
Appeal from order, at special term, denying defendant’s motion to be permitted to plead, by supplemental answer, their discharge in bankruptcy obtained since joinder of issue in the action. The complaint alleged a conversion of certain stock deposited by James E. Lyon, plaintiff, with the defendants, James M. Isett and others. At the time of said motion the trial of the action was pending before a referee.
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Appeal from order, at special term, denying defendant’s motion to be permitted to plead, by supplemental answer, their discharge in bankruptcy obtained since joinder of issue in the action. The complaint alleged a conversion of certain stock deposited by James E. Lyon, plaintiff, with the defendants, James M. Isett and others. At the time of said motion the trial of the action was pending before a referee. The motion was denied upon the sole ground that it appeared to the court “that the suit is in tort for the wrongful conversion of property, and that no recovery can be had therein, except…
1Opinion of the Court
By the Court.—Freedman, J.*
A supplemental *355pleading can be allowed only by the court, on motion. It should not be allowed at the trial (Garner v. Hannah, 6 Duer, 262).
Consequently section 272 of the Code, which confers upon referees the same power to allow amendments to any pleading, and to the summons, as the court possesses upon the trial, does not apply to this case.
The cases and the manner in which a supplemental answer is to be allowed are prescribed by section 177 of the Code, and the practice is, upon a case being made within the terms of that section, to grant the order almost as a…
2Cases cited5 opinions
- Conaughty v. . NicholsNew York Court of Appeals · 1870
- Garner v. HannahThe Superior Court of New York City · 1857
- Hoyt v. SheldonThe Superior Court of New York City · 1856
- Morel v. GarellyNew York Court of Common Pleas · 1863
- Palmer v. MurrayNew York Supreme Court · 1860