[1] The order might well be affirmed on the opinion of Mr. Justice Page at Special Term were it not for the fact that we deem it advisable to point out that defendant is in default with respect to the supplemental complaint. The demurrer to the supplemental complaint only was not authorized for the reason that the supplemental complaint was not served in place of the_ amended complaint, but for the purpose of alleging a conclusive adjudication on the issues since the commencement of the action, and therefore the amended complaint has not been superseded and still stands. Haywood v. Hood, 44 Hun, 128; Harris v. Elliott, 29 App. Div. 568, 51 N. Y. Supp. 1012. See, also, Stearns v. Lichtenstein, 48 App. Div. 498, 62 N. Y. Supp. 949.
[2] In these circumstances the only question presented on the motion for judgment on the pleadings was whether on the amended complaint, the answer thereto and the supplemental facts set forth in the supplemental complaint not put in issue plaintiff was entitled to judgment. The motion did not present the question as to whether or not defendant should be permitted to answer the supplemental complaint, for on the record he had not pleaded thereto in a form authorized. Being in default, he should have moved at Special Term to open his default if he •desired to put in issue the facts alleged in the supplemental complaint
[3] We agree with the views well expressed in the opinion at Special Term with respect to the jurisdiction of the referee in bankruptcy to pass upon the liability of the defendant as an officer of the bankrupt to the estate in bankruptcy and that the decision is res ad judicata; and those questions do not require further discussion.
It follows that the order should be affirmed, with $10 costs and disbursements. All concur.
