Schmohl v. Fusco
New York Court of Common Pleas
Appeal from city court, general term. Action by William H. Schmohl against Angelo Adam and Giuseppe Fusco brought in the city court on an alleged partnership liability of defendants. Defendant Fusco appeared and answered. Defendant Adam demurred to the complaint for insufficiency in substance, and, the demurrer being overruled, judgment was entered against him.
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Appeal from city court, general term. Action by William H. Schmohl against Angelo Adam and Giuseppe Fusco brought in the city court on an alleged partnership liability of defendants. Defendant Fusco appeared and answered. Defendant Adam demurred to the complaint for insufficiency in substance, and, the demurrer being overruled, judgment was entered against him. Thereupon defendant Fusco applied for leave to serve a supplemental answer, pleading this judgment against his co-contractor in bar of the action against him. The motion was denied, and an appeal by defendant Fusco to the general term…
1Opinion of the CourtPryor, J.
For two separate and sufficient reasons the order on appeal must be affirmed.
1. On the vacatur of the judgment against Adam, the case stood as if such judgment had never been rendered, and the liability of Fusco continued, with all original remedies for its enforcement. Sinclair v. Hollister, (Com. Pl. N. Y.) 16 N. Y. Supp. 529. Hence the proposed supplemental answer would have offered no defense to the action in favor of Fusco, and its disallowance, therefore, is an inevitable and unimpeachable conclusion.
2. Leave to serve the supplemental answer may have been denied in the exercise of…
2Cases cited5 opinions
- Fleischmann v. . BennettNew York Court of Appeals · 1880
- Wakefield v. American Surety Co.New York Court of Common Pleas · 1885
- Cushman v. . BrundrettNew York Court of Appeals · 1872
- Mills v. . HildrethNew York Court of Appeals · 1880
- Sinclair v. HollisterNew York Court of Common Pleas · 1891