
    N. Y. COMMON PLEAS.
    Samuel Townsend agt. Solomon L. Simpson and others.
    
      Practice—Discha/i'ge of a judgment against a bankrupt—Previous applications — Code of Civil Procedu/re, sec. 1268.
    Where, in a suit brought in 1877, upon a judgment obtained in 1858, a motion for leave to set up by supplemental answer an order granted in 1881, under section 1268 of the Code, canceling and discharging the judgment, was denied, upon the ground that it was an attempt to set up defendant’s discharge in bankruptcy, application for which had twice been refused, on the ground of laches, and that the denials of the former motions were res adjudicata:
    
    
      Held, that this was error, the last application not being the same as that which had been heard and decided before; and the order canceling the record had so changed the position of the parties to the action that the leave asked should have been granted on terms.
    
      General Term, November, 1881.
    Appeal by defendant Simpson from an order of the special term denying his motion for leave to make and serve a supplemental answer, setting np as a defense to the action an order previously obtained by him canceling the docket of the judgment constituting the cause of action.
    The facts are as follows: In 1858, the plaintiff’s assignor, Barker, procured judgment in this court against the defendant. In 1877 leave was obtained, and this action was brought upon the judgment and issue joined. In 1878 the defendant Simpson filed his petition in bankruptcy, making the plaintiff and his assignor parties thereto. In 1879 said defendant received his discharge in bankruptcy, and in ■ 1880, eighteen months thereafter, applied to the court for leave to plead the discharge by supplemental answer. Motion was denied on the ground of laches, and thereafter, upon a renewal of the motion upon additional papers, it was again denied.
    In 1881, two years having elapsed since the discharge in bankruptcy, defendant moved, under section 1268 of the Code of Civil Procedure, to cancel and discharge the Barker judgment obtained in 1858. Said motion was granted. Immediately thereafter the defendant applied for leave to make and serve a supplemental answer setting up the order canceling and discharging the Barker judgment. This motion was opposed on the ground that it was an attempt to set up the discharge in bankruptcy; that it was a renewal of the previous applications without leave first obtained, and that the denials of the former motions were res adjudícala.
    
    The motion was denied, and defendant appealed.
    
      Simpson & Werner, for appellant.
    
      Wilson M. Powell, for respondents.
   J. F. Daly, J.

— The motion for leave to plead the canceling of the judgment is not the same application which had been heard and decided before. The order of July 28, 1881, canceling the record, made a substantial change in the position of the parties to the action. The effect of that order was to remove from the record the judgment upon which this action was brought.

The defendant was entitled upon proper terms to set up the discharge which this court had ordered, pursuant to the imperative direction of the Code.

The court has no power to refuse to carry out the intention of the legislature in that regard. The order should have been made granting the leave asked on payment by defendant of all the costs of the suit, and upon the stipulation to the discontinuance of the action, without costs, if plaintiff desire.

Order reversed, with ten dollars costs and disbursements of appeal.

Yah Hoeseh, J., concurs.  