Dempsey v. Baldwin

This is an appeal from an order denying a motion for leave to serve a supplemental answer setting up a former judgment.

The judge at Special Term denied the motion on the ground that the answer did not clearly state whether the defendant relied on a breach of the covenant to give possession or upon an eviction after possession.

The answer is open to criticism on that point, but we think it is defendant’s right to be allowed to plead recovery of a former judgment for what it may be worth on the trial of a second action.

The pleadings on the first trial are only referred to on this appeal and from the record we are unable to say what was litigated or passed upon at that trial.

The competency of the matters sought to be interposed will be passed upon by the trial judge.

For the reasons above stated, the order appealed from will be reversed and the parties remitted back to the Special Term, where the amendment will be allowed on such terms as may there be imposed.

As the terms are left with the Special Term there will be no costs of this appeal. Ordered accordingly.

Botty, J., concurs.

Order reversed and case remitted to Special Term, without costs.