
    Bank of the Metropolis, App'lt, v. Jacob L. Lissner, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 5, 1896.)
    1. Pleading—Supplemental.
    An application for leave to file a supplemental answer, is within the discretion of the court.
    2. Same.
    Such application will be denied if the facts sought to be pleaded can be proved and have the same effect under the original issue,, as though the new pleading had been served.
    
      Appeal from an order granting defendant leave to serve a supplemental answer.
    Geo. Putnam Smith, for app’lt; D. Leventritt, for resp’t.
   PER CURIAM.

In spite of the mandatory language of section 544 of the Code of Civil Procedure, it is nevertheless within the discretion of the court to. grant applications of this kind or to refuse them (Fleischmann v. Bennett, 79 N. Y. 579), and they will be refused whenever it appears that an injustice would be worked by allowing a supplemental answer to be served (Holyoke v. Adams, 59 N. Y. 237). It is quite clear in this case, we think, that it would be unjust so far to decide the puestion of the admissibility of this evidence as might even inferentially be done by permitting the supplemental answer to be served. Eo injustice can be done to the defendant by denying this motion, because, if the adjudication in the former action is admissible in this case, it will have the same effect, when proved as evidence, as it would if pleaded and proved after the pleading had been served. Krekeler v. Ritter, 62 N. Y. 372.

The order is reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.  