Morel v. Garelly, 16 Abb. Pr. 269

Morel v. Garelly

16 Abb. Pr. 269 | New York Court of Common Pleas | 1863

By the Court.—Brady, J.

Any defence which a party could have pleadedyws darrien continuance as a matter of strict right, he should be allowed to set up by supplemental answer. (Code, §§ 177, 469; Shawe a. Wilmerden, 2 Cai., 380; Broome a. Beardsley, 3 Ib., 172; Hoyt a. Sheldon, 4 Abbotts' Pr., 59; affirming S. C., 6 Duer, 661; Sandford a. Sinclair, 3 Den., 269.)

If the defendant be guilty of laches, it is in the discretion of the court to receive the plea or not. (Morgan a. Dyer, 9 Johns., 255; 10 Ib., 161; Ludlow a. McCrea, 1 Wend., 228. See, also, Merchants’ Bank a. Morse, 2 Johns., 294; Tuffs a. Gibbons, 19 Wend., 639; Hoyt a. Sheldon, 4 Abbotts’ Pr., 59; Sandford a. Sinclair, 3 Den., 269.)

And a defendant has been permitted to plead his discharge puis after the time limited. (Shawe a. Wilmerden, 2 Cai., 380. See, also, Sandford a. Sinclair, supra.)

But the plea should be true, and contain a good defence. The concordat set up in the supplemental answer bound the creditors in France, and, I think, all creditors who participated in it. When the latter circumstance occurs, it assumes the form, or becomes endowed with the attributes of a composition-deed, and as such, of course, binds the creditors joining. Assuming this to be so, and that the plea, if true, was an answer *272to the plaintiff’s claim, yet' an application to set it up is required under the new system of pleading, and on that application there is no reason why the truth of the plea should not be inquired into. If the answer was put in as matter of course, it could be stricken out as sham, if false; and to anticipate such a motion, when leave is asked to place the answer upon the record, is to further the administration of justice, not to delay it. The judge at special term was satisfied that the answer was false, and for that reason denied the application to put it in. In this he appears to have acted properly, and the order appealed from should be affirmed.

Daly, F. J., and Hilton, J., concurred.