Medbury v. . Swan
New York Court of Appeals
Appeal from order of the General Term, first department, affirming order bf Special Term, denying defendant’s application for leave to serve a supplemental answer, setting up his discharge in bankruptcy. This action was'commenced in January, 1867, the complaint alleging an indebtedness to one Arnold Medbury, deceased, a settlement of that indebtedness by the defendants with the administrator of the estate of the deceased, and an assignment of the debt to the plaintiff.
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Appeal from order of the General Term, first department, affirming order bf Special Term, denying defendant’s application for leave to serve a supplemental answer, setting up his discharge in bankruptcy. This action was'commenced in January, 1867, the complaint alleging an indebtedness to one Arnold Medbury, deceased, a settlement of that indebtedness by the defendants with the administrator of the estate of the deceased, and an assignment of the debt to the plaintiff. The defendant, Isaac W. Swan, appeared and answered in February following. The cause has never been noticed for trial, and…
1Opinion of the CourtAllen, J.
An appeal is allowed to this court from an order “ affecting a substantial right not involving any question of discretion arising upon any interlocutory proceeding, or upon any question of practice in the action.” (Code, § 11, sub. 4.)
By statute, the defendant may, by leave of the court, granted upon motion, make a supplemental answer, alleging facts material to the case, occurring after the former answer was put in. (Code, § 177.)
' The right to allege new matter, by supplemental pleading, is not an absolute and positive right, but is made to depend upon the leave of the court, in the…
2Cases cited2 opinions
- Malcom v. RogersNew York Supreme Court · 1825
- Hoyt v. SheldonThe Superior Court of New York City · 1856
3Cited by34 opinions
- Holyoke v. . AdamsNew York Court of Appeals · 1874
- Bank of Commerce v. ElliottWisconsin Supreme Court · 1901
- People v. BaldwinAppellate Division of the Supreme Court of the State of New York · 1921
- Clark v. SpencerSupreme Court of Kansas · 1875
- Wade v. GouldSupreme Court of Oklahoma · 1899
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