
    Hasbrouck v. Disbrow.
    
      (Supreme Court, General Term, Second Department.
    
    May 18, 1889.)
    Pleading—Supplemental Pleas—Res Judicata.
    Where the matters contained in a complaint were pleaded as a counter-claim in a subsequent action brought by the defendant against the plaintiff, in which judgment by default was rendered against the latter, but it appears that the default, was taken by consent, and that the apparent adjudication against the present, claim was overlooked, leave to plead the judgment in bar as a new plea will not b& granted.
    Appeal from special term, Westchester county.
    Action by Stephen Hasbrouck against Josephine L. Disbrow. Plaintiff appeals from an order allowing defendant to file a supplemental answer.
    
      Argued before Barnard, P. J., and Dykhan and Pratt, JJ.
    
      Francis Larkin, for appellant. James Flynn, for respondent.
   Pratt, J.

The allowance of a supplemental answer is not a matter of strict right. When it is made to appear that such permission to plead will work injustice it will be denied. Examining the case before us, we find that the matters contained in the complaint were pleaded as a counter-claim in a suit subsequently brought in another county by defendant, in which judgment by default passed against this plaintiff; the record of which is now sought to be pleaded in bar to the present action. Ordinarily such defenses are greatly favored, as the public time should not be wasted upon controversies once determined. But in the present case the question apparently adjudicated has not in fact been passed upon. The negotiations which led to the taking of the default without opposition are not disputed; and it is entirely clear that the apparent adjudication against the present claim flowing from such default was overlooked. Had it been perceived, this claim would have been withdrawn from the record in that action, and the present question would never have arisen. Under these circumstances, leave to file a new plea should not be granted. What effect the judgment will have if offered in evidence without being pleaded is not before the court, and need not be discussed. A certain measure of strictness may have its advantages; but the court will not, if it can be avoided, visit upon a litigant the loss of a claim of $8,000 because an attorney momentarily lost sight of a remote consequence of an arrangement in which the opposite party surrendered nothing. Order appealed from reversed, with $10 costs and disbursements in this court, and $10 costs of special term. All concur.  