
    THOMAS C. AVERY, Respondent v. WILLIAM H. STARBUCK, Appellant.
    
      Supplemental answer, not allowed to set up an unsubstantial defence, nor to set up a record which, without being set up by answer, can be read in evidence with like effect as if set up.
    
    Where it appears by the moving papers that the matters sought to be set up in the supplemental answer as a plea in bar to an action on a quantum •meruit, for work done and materials furnished on a vessel, is a judgment of the United States District Court against the plaintiff, rendered after a trial of the issues joined by a libel filed by him against the vessel to enforce a claimed lien thereon for such work and materials, and the answer thereto filed by the owner of the vessel (being also the defendant) who asks leave to serve a supplemental answer dismissing the libel on the ground that no maritime lien existed, the motion for leave to serve a supplemental answer should be denied.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided March 5, 1889.
    Appeal from order denying defendant’s motion for leave to file a supplemental answer.
    The facts sufficiently appear in the opinion.
    
      Holmes & Adams, attorneys, and George H. Adams of counsel for appellant, argued:—
    I. The facts averred in the proposed supplemental answer must be pleaded, and cannot be proven under the general issue. Hendricks v. Decker, 35 Barb. 299.
    II. The code expressly provides that by supplemental answer may be set up :— “ the judgment or decree of" a competent court rendered after the commencement of the action determining the matters in controversy, or a part thereof.” Code of Civil Procedure, § 544.
    III. The court will not deny a motion to file a supplemental answer, upon the ground that the facts sought to be set forth therein do not constitute a defence to the action unless they are clearly frivolous. Mitchell v. Allen, 25 Hun 543.
    IV. The rule of decision, and the discretion to be applied upon such a motion are definitely settled in Holyoke v. Adams, 59 N. Y. 234. And the court distinguish Medbury v. Swan, 46 N. Y. 200.
    
      James C. Anderson, attorney, and Joseph F. Mosher of counsel for respondent, argued :—
    I. Leave to serve a supplemental answer is only to be granted in a “proper case.” Code, § 544; Fleischman v. Bennett, 79 N. Y. 579. It will not be granted if it is clear that the new matter sought to be alleged does not constitute a defence, Jagger v. Littlefield, 3 Week. Big. 316 ; Ratzer v. Ratzer, 2 Abb. JJ. C. 461.
    
      II. In the present case the defendant asked leave to allege by supplemental answer the decree of a court of admiralty which did not determine the matter in controversy in this action, or any part thereof, but merely determined that the plaintiff here had no lien upon the yacht for the work done and materials furnished. The admiralty decree expressly declares that the libel is dismissed on the ground of no lien. The opinion also shows that such was the only ground of decision; and it may be examined for that purpose. Birckhead v. Brown, 5 Sand. 134. No personal decree against the owner could be entered in the admiralty suit in rem, if no lien existed. The Monte A., 12 Fed,. Rep. 331.
    III. The suit in admiralty was analogous to a proceeding to enforce a mechanics’ lien, in which, prior to the act of 1885, no personal judgment could be obtained unless a lien was established. Meyer v. Beach, 79 N. Y. 409. But it would never be pretended that a mechanic who failed to establish a lien, would, by an adverse judgment on that ground in a foreclosure proceeding, be estopped to recover his .debt in another action in personam upon his contract. Randolph v. Leary, 4 Abb. 205, 206 ; Grant v. Vandercook, 57 Barb. 165.
   By the Court.—Sedgwick, Ch., J.

The action was for work and materials furnished to defendant for a certain yacht. The defendant answered. Afterwards he made the motion below which was to allow him to serve a supplemental answer alleging that, since the former answer, judgment had been entered in favor of defendant, in a suit in the U. S. District Court, in which the plaintiff was the present plaintiff, and alleging that the suit in the District Court was brought upon the same grounds and for the same relief as claimed in this action.

On the motion it indubitably appeared that the suit in the District Court, was terminated in favor of this defendant without any adjudication of whether or not the plaintiff had a claim for work and materials, and that the proceeding being in rein, the actual adjudication was, that if the plaintiff had a personal claim he had no lien upon the vessel, and this led to a dismissal of the libel.

I am of opinion, that it so certainly appeared, that the answer proposed could not sustain the defence by way of bar upon the fact, that the judge was right in not allowing an unsubstantial defence, but I also take into consideration that the defendant will have a right upon the trial to present the same record, as evidence of the facts in issue, and with conclusive effect, if the appellant should be right in his present assertion as to the effect of the record in the District Court. Marston v. Swett, 66 N. Y. 206; Krekeler v. Ritter, 62 Ib. 372.

The order should be affirmed with $10 costs.

Truax and Dugro, JJ., concurred.  