O'Brien v. Metropolitan Street Railway Co.
Appellate Division of the Supreme Court of the State of New York
Appeal Dy the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New Y ork Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1898, denying the defendant’s motion for leave to serve a supplemental answer setting up-a settlement between the parties to the action.
1Opinion of the Court
Barrett, J.:
We agree with the plaintiff’s attorney that, notwithstanding the mandatory language used in section 544 of the Code of Civil Procedure, it was within the discretion of the court below to grant or ■ -refuse this application. That discretion is, however, re viewable •here. In this case we see no reason why the application should have .-been refused. It is conceded that the plaintiff has settled the case and has given the defendant a release. Why should not the defendant be permitted to plead the release? None is suggested save that •the plaintiff’s attorney has made an agreement…
2Cited by10 opinions
- Taylor v. St. Louis Transit Co.Supreme Court of Missouri · 1906
- Potter v. Ajax Mining Co.Utah Supreme Court · 1899
- Smelker v. Chicago & Northwestern Railway Co.Wisconsin Supreme Court · 1900
- Fenwick v. MitchellNew York Supreme Court · 1901
- Varriale v. Metropolitan Street Railway Co.Appellate Division of the Supreme Court of the State of New York · 1900
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