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Bilder v. Ellis

Supreme Court of New York, Appellate Division

January 19, 1912

NATHAN BILDER, as Trustee in Bankruptcy of KORNIT MANUFACTURING COMPANY, Respondent,
v.
CHARLES E. ELLIS, Appellant.

APPEAL by the defendant, Charles E. Ellis, from 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 7th day of August, 1911, granting the plaintiff's motion for judgment on the pleadings.

COUNSEL

W. Bernard Vause, for the appellant.

Julius Henry Cohen, for the respondent.

LAUGHLIN, J.:

The order might well be affirmed on the opinion of Mr. Justice PAGE at Special Term, were it not for the fact that we deem it advisable to point out that defendant is in default with respect to the supplemental complaint. The demurrer to the supplemental complaint only was not authorized for the reason

Page 648

that the supplemental complaint was not served in place of the amended complaint, but for the purpose of alleging a conclusive adjudication on the issues since the commencement of the action, and, therefore, the amended complaint has not been superseded and still stands. ( Hayward v. Hood, 44 Hun, 128; Harris v. Elliott, 29 A.D. 568. See, also, Stearns v. Lichtenstein, 48 id. 498.) In these circumstances the only question presented on the motion for judgment on the pleadings was whether on the amended complaint, the answer thereto and the supplemental facts set forth in the supplemental complaint not put in issue, plaintiff was entitled to judgment. The motion did not present the question as to whether or not defendant should be permitted to answer the supplemental complaint for on the record he had not pleaded thereto in a form authorized. Being in default he should have moved at Special Term to open his default if he desired to put in issue the facts alleged in the supplemental complaint. We agree with the views well expressed in the opinion at Special Term with respect to the jurisdiction of the referee in bankruptcy to pass upon the liability of the defendant as an officer of the bankrupt to the estate in bankruptcy and that the decision isres adjudicata, and those questions do not require further discussion.

It follows that the order should be affirmed, with ten dollars costs and disbursements.

INGRAHAM, P. J., MCLAUGHLIN, MILLER and DOWLING, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

The following is the opinion of the Special Term:

PAGE, J:

This action was brought by the trustee in bankruptcy of the Kornit Manufacturing Company, a foreign corporation, incorporated under the laws of the State of New Jersey, against the defendant, who was president of said corporation, to recover the sum of $371,674.50 as moneys had and received by the defendant to the use of the corporation on the sale of shares of stock. The ...


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