Teisch v. Singer

Order granting, on condition, appellants’ motion for leave to serve a supplemental answer modified by striking therefrom the provision for costs, and as so modified affirmed, without costs. The supplemental answer is to be served within five days from the entry'of the order herein. In our opinion the appellants are entitled to serve a supplemental answer setting up the plaintiff’s settlement with defendant Singer, on the theory that he was a joint tort feasor with the appellants. Young, Kapper and Tompkins, JJ., concur; Hagarty and Davis, JJ., dissent and vote to affirm the order as granted. There was no right to serve a supplemental answer, for it appears in the record that the settlement with Singer, a joint tort feasor, was with full reservations and constituted a covenant not to sue. (Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58.) The proposed supplemental answer sets up no defense, although the sum paid by Singer may be credited on any verdict that may be rendered. If plaintiff had appealed from the order, we think it should have been reversed.