Hall v. Olney , 65 Barb. 27 ( 1873 )

By the Court, E. Darwin Smith, J.

The judgment of the justice was reversed upon the single ground that haying received the certificate, showing payment by the defendant to the sheriff, upon execution against the plaintiff, made pursuant to section 293 of the Code, it was error in Mm afterwards to disregard it and render judgment as if it had not been received. In tMs, I tMnk, the county court decided correctly. The justice doubtless erred in receiving the evidence. - It was not admissible under the pleadings; these relate to the time of the commencement of the action. Evidence of facts transpiring, or of a defence, in whole or in part, occurring, after the commencement of an action, and issue joined therein, can only be received upon and in support of a supplemental answer put in by leave of the court. If the defendant had asked leave at the trial, to put in a supplemental answer, setting up tMs payment, it might have been allowed, on payment of all the costs of the action up to that time, and the plaintiff might-have elected to discontinue the action upon such offer. Proof of such receipt by the sheriff was simply proof of payment, and should be pleaded. The justice erred in receiving the evidence, but he could not afterwards, and after the case had been submitted to him for decision, correct such error to the injury of the defendant, and when he could not rectify the mistake he committed by offering such evidence, without an amendment of his answer, by leave for that purpose. The judgment of the county court should therefore be affirmed.

[Fourth Department, General Term, at Rochester, April 1, 1873.

Mullin, Tálcott and B. D. Smith, Justices.]

Judgment affirmed.