
    Frank J. Schmitz, Respondent, v. Wyckoff, Church & Partridge, Defendant, Impleaded with Valvoline Oil Company, Appellant.
    (No. 1.)
    First Department,
    October 23, 1908.
    Pleading'— defense arising after action brought — settlement with, one of two joint tort feasors — costs on leave to file supplemental answer.
    Where after action brought the plaintiff settles with one of two joint tort feasors and discontinues as to him, an order granting the other defendant leave to allege that defense by way of supplemental answer should not he conditioned upon the payment of costs if the settlement was not-procured by him.
    Appeal by the defendant, the Valvoline Oil Company, from that part of an order of the Supreme Court, made at the New York Special Term and entered in the office 'of the clerk of the -county of New York on the- 23d day of July, 1908, which imposes costs; from the beginning of the action as a condition of granting permission to serve a supplemental answer.
    
      Walter H. Griffin of counsel [Putney, Twombly & Putney, attorneys], for the appellant.
    
      Charles La Rue, for the respondent.
   Clarke, J.:

The action was brought to recover for damages alleged to have been caused by the negligence of the defendants in handling and storing gasoline. On the 20th of January, 1908, the plaintiff settled with the defendant Wyckoff, Church & Partridge. A general release was executed, and a stipulation discontinuing the action was signed by the plaintiff’s attorney on June 5, 1908. The defendant Valvoline Oil Company and its attorneys knew nothing of this settlement, release and discontinuance until June 12, 1908. Thereupon on July ninth, upon an affidavit of merits, the appellant made a motion for an order permitting it to serve a supplemental answer setting up the release under seal executed by the plaintiff to the defendant Wyckoff, Church & Partridge from the claim set up in the complaint, and alleging that the plaintiff thereby likewise released the appellant. The motion was granted upon the payment of costs from the beginning of the action to the present time.

Section 544 of the Code of Civil Procedure provides that “Upon the application of either party, the court may, and in a proper case must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the action determining the matters in controversy or a part thereof.”

The settlement between plaintiff and the defendant Wyckoff, Church & Partridge was a material fact which occurred after the former pleading, the answer of the defendant oil company. It was a new fact which was not brought about by the appellant but by its codefendant between whom there is no connection. It was a material fact in that the release of one jo.int tort feasor is the release of all joint tort feasors and the appellant had a perfect right to plead the release as a defense.

Under such circumstances no costs should have been imposed. If the appellant had procured the settlement and the release behind the attorney’s back and then had asked leave to set up by way of supplemental answer that fact of its own procurement, the imposition of costs would have been proper. That is not this case. There were no opposing papers and there is no denial of the fact that the first knowledge that the appellant had of the settlement was six months after it had been made;

Therefore, that portion of the order appealed from should be reversed, with ten dollars costs and disbursements to the appellant.

Patterson, P. J., Ingraham, Laughlin and Scott, JJ., concurred.

Order, so far as appealed from, reversed, with ten dollars costs and disbursements. Settle order on notice.  