187 A.D. 561 | N.Y. App. Div. | 1919
This action is brought to recover from the defendant the sum of $2,196.23 which the plaintiff claims to have overpaid by mistake to the defendant out of a partition fund deposited with the plaintiff under an order of the Supreme Court. The complaint alleges that on September 17, 1912, plaintiff had in its possession as the balance of a fund the sum of $4,392.47, which was the amount of the shares of one Linda Leggett and the defendant, on which day, erroneously believing that the whole of said sum was the defendant’s share, it paid to the defendant $1,442.47, and on October 29, 1912, the further sum of $2,000, and paid with the consent of the defendant to two attorneys of the defendant the sum of $950; and that on June 9, 1913, plaintiff paid to said Linda Leggett the sum of $2,196.23 on account of her share of the fund, by reason whereof the defendant -has received $2,196.23 over and above the amount to which he was entitled as his share in the fund. Plaintiff accordingly bases its right to recover said sum upon the adjudication made in the order of distribution entered October 25, 1910, that Linda Leggett, the defendant and four others were each entitled to one-sixth interest in the fund in plaintiff’s hands. Plaintiff, therefore, asserts and relies upon the validity of the order of distribution. The learned Special Term has denied a motion of the defendant to serve an amended answer attacking the validity of the order of distribution, in which proposed amended answer the defendant alleges that as to him the order was void, in that the court had no jurisdiction to make an order as against him determining his share in said fund for the reason that the defendant was not served with the order to show cause bringing on the motion on which the order of distribution was made. The learned Special Term denied the motion on two grounds: (1) That the proposed amended answer clearly failed to set forth any defense, because in it the defendant sought to attack collaterally an outstanding order of the Supreme Court; and (2) the defendant has received payments pursuant to the order and is, therefore, estopped from interposing any such defense. Since the decision in Muller v. City of Philadelphia (113 App. Div. 92) the rule with respect to permitting the service of amended pleadings has been, as therein laid
The order should be reversed and the motion granted, but, under the circumstances, upon condition that the defendant pay all taxable costs to date and ten dollars costs of the motion and serve the amended answer within ten days on stipulation that the date of issue shall not be affected thereby or by the service of a reply thereto.
Clarke, P. J., Dowling, Smith and Page, JJ., concurred.
Order reversed and motion granted on conditions stated m opinion.