
    Elvira Purdy, Respondent, v. The Manhattan Railway Co. et al., Appellants.
    (New York Common Pleas — General Term,
    February, 1895.)
    Pending an action against an elevated railroad for an injunction and damages condemnation proceedings were instituted, from an award in which, plaintiff appealed, giving a stipulation not to disturb defendant’s possession of the easements in question. Two months after reversal of such award defendants moved for leave to serve a supplemental answer setting up said stipulation, which was denied. Held, error; that the motion was in time, was not frivolous and raised doubtful questions as to whether the' stipulation was absolute and whether the action was a disturbance of defendants’ possession, and, therefore, the leave asked for should have been granted.
    
      Appeal from an order denying' defendants’ motion for leave to serve a supplemental answer setting up matter of defense arising during the pendency of the action.
    
      Samuel G. Adams, for respondent.
    
      JuUm T. Dmies and Arthur 0. Townsend, for appellants.
   Bischoff, J.

This is an appeal from an order denying defendants’ motion for leave to set up by supplemental answer the defense that subsequent to the commencement of the action the plaintiff had entered into a stipulation that the defendants’ possession of the easements in suit should not be disturbed, this stipulation having been given by the plaintiff in accordance with the provisions of the General Railroad Act (Chap. 140, Laws of 1850, § 18; 3 R. S. [8th ed.] p. 1745) upon her appeal to the General Term of the Supreme Court from an award of commissioners in condemnation proceedings which had been instituted by the defendants for the purpose of acquiring such easements, the above statute requiring that such a stipulation be entered into as a condition to the hearing of an appeal so taken.

This stipulation, as appears from the proposed supplemental' pleading, was given on the 2d day of January, 1894, and filed with the clerk of the General Term of the Supreme Court on the 5th day of January, 1894. On the 16th day of February an'order was made by that General Term permitting this plaintiff, the appellant in that proceeding, to annex the stipulation to the printed papers upon the appeal then pending. From the record before us it appears that on this same day an order was entered reversing the award appealed from and ordering a new appraisal.

Under section 544 of the Code the right to serve a supplemental pleading is not to be withheld where timely asserted ■ unless it be shown- that the object of the application is to obtain delay, or is not otherwise in good faith, or unless the proposed pleading is manifestly frivol bus (Williams v. Hays, 17 Civ. Proc. Rep. 97 ; Mitchell v. Allen, 25 Hun, 543), or does not present a doubtful question.- Morel v. Garelly, 16 Abb. Pr. 269 ; Lyon v. Isett, 34 N. Y. Super. Ct. 41; Tifft v. Bloomberg, 49 id. 323. Where a supplemental answer cannot be a bar it will hot be allowed (Ratzer v. Ratzer, 2 Abb. N. C. 461), but when there is some doubt as to the .question it should not be determined upon the motion for leave to serve the pleading, but Upon the trial. Hoyt v. Sheldon, 4 Abb. Pr. 59.

It appearing that the appeal from the award of the commissioners resulted in the setting aside of .the award, the question arises with regard to the construction of the statute requiring the filing of the stipulation noted as a condition to the hearing of the appeal, for the purpose of determining whether the intention of the legislature was to limit, the effect of the stipulation to the pendency of the appeal, or whether its effect is to be viewed as absolute and continuing.

Assuming the stipulation to be absolute, a further question would arise as to whether the requirement that it be given would be in effect the depriving an appellant of his property without making just compensation, the requirement dealing only with the “ possession ” and the act providing for a new appraisal in the event of the reversal of an award upon appeal.

Beyond this there is a question as to whether the plaintiff’s .action for "damages and alternative injunctive relief may or may not be viewed as a disturbance of the defendants’ possession of the easements in suit.

The -motion could not, therefore, have been properly denied upon the ground that the supplemental answer was frivolous, or that it did not raise a doubtful question, and it does not appear from the papers that there was bad faith upon the part of the defendants in making the application.

Nor do we think that the defendants weie guilty of laohes in making this motion.

True, the stipulation was filed on January 5, 1894, and the motion was made on April eighteenth, but the final order of the Supreme Court reversing the award of the commissioners was not made until February sixteenth, and the question with regard to the absolute effect of the stipulation could not be fairly presented until that time.

We do not consider that the facts shown called for a denial of the motion upon this ground, and, moreover, no point was made upon the hearing below as to the defendants’ failure to move immediately upon the determination of the appeal by the Supreme Court, the motion being opposed upon the ground that defendants had failed theretofore to set up the pendency of the condemnation proceedings, which fact could not be of significance to the question then presented.

We conclude that the defendants should be permitted to set up by supplemental answer the matter thus sought to be alleged upon payment of twenty-five dollars costs.

• Order reversed, without costs, and permission accorded to defendants as above.

Pryor, J., concurs.

Order reversed, without costs, and leave granted to serve supplemental answer on payment of twenty-five dollars costs.  