Purdy v. Manhattan Railway Co. 65 N.Y. St. Rptr. 450

Bischoff, J.

This is an appeal from ah order denying defendants’ motion for leave to set up by supplemental answer the defense that subsequent to the commencement of the action the plaintiff had entered into a stipulation that the defendants' possession of the easements in suit should not b.e disturbed, this stipulation having been given by the plaintiff, in accordance with the provisions of the general railroad act (Laws 1850, c. 140, § 18 ; Rev. St. [8th Ed.] p. 1745), upon her appeal to the general term of the supreme court from an award of commissioners in condemnation proceedings which had been instituted by the defendants for the purpose of acquiring such easements, the above statute requiring that such a stipulation be entered into as a condition to the hearing of an appeal so taken. This stipulation, as appears from the proposed supplemental pleading, was given on the 2d day of January, 1894, and filed with the clerk of the general term of the supreme court on the 5th day of January, 1894. On the 16th day of February an order was made by that general term permitting this plaintiff, the appellant in that proceeding, to annex the stipulation to the printed papers upon the appeal then pending. From the record before us it appears that on this same day an order was entered reversing the award appealed from, and ordering a new appraisal. Under § 544 of the Code, the right to serve a supplemental pleading is not to be withheld where timely asserted, unless it be shown that the object of the application is to obtain delay, or is not otherwise in good faith, or unless the proposed pleading is manifestly frivolous, Williams v. Hays, 23 St. Rep. 489; Mitchell v. Allen, 25 Hun, 543, or. does not present a doubtful question, Morel v. Garelly, 16 Abb. Pr. 269; Lyon v. Isett, 34 Supr. 41; Tifft v. Bloomberg, 49 Supr. 323. Where a supplemental answer cannot be a bar, it will not be allowed, Ratzer v. Ratzer, 2 Abb. N. C. 461; but when there is some doubt as to the question, it should not be determined upon the motion for leave to serve the pleading, but upon the trial, Hoyt v. Sheldon, 4 Abb. Pr. 59. It appearing that the appeal from the award of the commissioners resulted in the setting aside of the award, the question arises with regard to the construction of the statute, requiring the filing of the stipulation noted as a condition to the hearing of the appeal, for the purpose of determining whether the intention of the legislature was to limit the effect of the stipulation to the pendency of the appeal, or whether its effect is to be viewed as absolute and continuing. Assuming the stipulation to be absolute, a further question would arise as toi whether the requirement that it be given would be, in effect, the depriving an appellant of his property without making just compensation, the requirement dealing only with the “possession,” and.the act providing for a new appraisal in the event of the reversal of an award upon appeal. Beyond this there is a question - as to whether the *452plaintiff’s action for damages and; alternative injunctive relief may or may not be viewed as a disturbance of the defendant’s possession of the easements in suit. The motion could not, therefore, have been properly denied upon the ground that the supplemental answer was frivolous, or that it did not raise a doubtful question, and it does not appear from the paper's that there was bad faith upon the part of the defendants in making the application. Nor do we think that the defendants were guilty of loches in making this motion. True, the stipulation was tiled on January 5, 1894, and the motion was made on April 18th, but the final order of the supreme'court reversing the award of the commissioners was not made until February 16th, and the question with regard to the absolute effect of the stipulation could not be fairly presented until that time. We do not consider that the facts shown, called for a denial of the motion upon this ground, and, moreover, no point was made upon the hearing below as to the defendants’ failure to move immediately upon the determination of the appeal by the supreme court, the motion being opposed upon the ground that defendants had failed theretofore to set up the pendency of the condemnation proceedings, which fact could not be of significance to the question then presented. We conclude that the defendants should be permitted to set up by supplemental answer the matter thus sought to be alleged, upon payment of $25 costs. Order reversed, without costs, and permission accorded to defendants as above.