22 Barb. 161 | N.Y. Sup. Ct. | 1856
The defendant Slade does not, in his supplemental answer, state that he was ignorant of the new facts set up therein, at the time of the putting in of his original answer, or that, if known to him at that time, they were omitted by mistake or inadvertence; nor does he state any other sufficient reason for the omission. He merely states the new facts upon information received since the putting in of his original answer. This may be strictly true, and yet he may have had full knowledge of such facts when he put in such answer. (1 Barb. Ch. Pr. 165, 6. 4 John. 375, 6.) Under the old chancery practice, amendments of answers, and leave to put in supplemental answers, were granted with great caution. (4 John. 376.) The defendant was not allowed .to file a supple
I think that the order appealed from in this case is an appeal-able order. It clearly involves the merits, or at least affects a substantial right. (Code, § 349, subd. 3. 10 How. Pr. Rep. 253, 4 id. 313. 8 id. 195. 7 id. 297.) A question whether a defendant should be allowed to set up a new defense which, if established, would be fatal to the plaintiff's action, must certainly affect a substantial right—the right of the plaintiff to recover upon the previous answer of the defendant. An order striking out portions of a pleading, if the portion stricken out may affect the rights of the party, has been held to be an appealable order. (4 How. Pr. Rep. 313. 8 id. 195.) If that is an appealable order, then an order allowing a party to introduce into his pleading new matter which affects the rights of his adversary, must also be appealable.
In this case the defendant Slade asks to be allowed to set up by way of a supplemental answer substantially the defense of
The voluntary alienation of property pending a suit, by a defendant therein, is not permitted to affect the rights of the other parties to the suit.' (2 John. 441, 445. 1 id. 506. ■ %Mit. PI. 73.) A lis pendens is constructive notice to a purchaser from the defendant, and he and his interest will be bound by the decree entered in the suit. The act requiring the filing of notice of lis pendens, in suits for the foreclosure of mortgages, ■was not passed until 1840, after the commencement of this suit. (1 John. 505. 9 Paige, 512, 516. Mit. PI. 73. 1 Paige, 483. 2 Barb. Ch. 151.) The plaintiff in a suit is not bound to make a purchaser pendente lite from the defendant a party to the suit'; although he may do so if he deems it essential to the relief to which he may be entitled against such purchaser, (7 Paige, 291.) The plaintiff can proceed in the suit without noticing the alienation, and the decree he obtains will bind the , purchaser. (5 John. 93.) If the plaintiff makes the purchaser a party, the alienee is bound by the previous proceedings in the suit before he was made a party; and he comes before the court in the same plight and condition as the former party, and is bound by his acts, and may be subject to the costs of the proceedings from the beginning of the suit. {Mit. PI. 68, 74. 1 Atk. 89. 6 Mad. 59. '¿Blight P. C. 593, note. 2 Atk. 174.) A supplemental bill is a mere continuation of the original suit by or against a party having or acquiring the interest of a former party; and it forms, together with the original bill and the proceedings under it, but one record. (2 Barb. Ch. Pr. 84, 85. Mit. PI. 64.) It is apparent, therefore, from the answmr and supplemental answer of the defendant Slade, and the affidavits read in opposition to the motion for leave to put in a supplemental answer, that the defense set up in such supplemental answer cannot be sustained. But inasmuch as the defendant Slade has alleged in his supplemental answer, duly verified, on information and belief, that the mortgage was paid and satisfied prior to March 17, 1834; and that it is not a lien on the mortgaged premises, I am disposed to give him
Under the circumstances, I am inclined to affirm the order of the special term without costs.
Judgment accordingly.
C. L. Allen, James, Rosekrans and Paige, Justices.]