An appeal is allowed to this court from an order "affecting a substantial right not involving any question of discretion arising upon any interlocutory proceeding, or upon any question of practice in the action." (Code, § 11, sub. 4.)
By statute, the defendant may, by leave of the court, granted *Page 202 upon motion, make a supplemental answer, alleging facts material to the case, occurring after the former answer was put in. (Code, § 177.)
The right to allege new matter, by supplemental pleading, is not an absolute and positive right, but is made to depend upon the leave of the court, in the exercise of a legal discretion. The application may be refused, if the new defence, although strictly legal, is inequitable, or if the application is not made with reasonable diligence. A party may waive his right altogether, or lose it by laches. (Hoyt v. Sheldon, 6 Duer, 661; S.C., 4 Abb., 59.) In one case, decided at Special Term, it was said that the word "may," in the statute permitting supplemental pleadings, should be read as "must," and that it was not material that the application for leave should be made at the earliest practicable day. (Dwight v. Curtiss, 8 How., 56.) The remark was not necessary to the decision; and I am not aware that the dictum has been followed or approved in subsequent cases. The word "may," according to its ordinary construction, is permissive, and should receive that interpretation, unless such a construction would be obviously repugnant to the intention of the legislature, to be collected from the terms of the act, or would lead to some other inconvenience or absurdity. The word may, in a statute, means must or shall, in those cases where the public are interested, and the public, or third persons, have a claim dejure to have the power exercised. (P.D. and Co. of Newburgh,etc., T. Co. v. Miller, 5 J.C.R., 101.) Chancellor KENT, in the case referred to, says the word has such meaning only in the cases mentioned. By an English statute it was enacted that, if certain matters should be made to appear to the satisfaction of the court, in which certain actions were brought, or of a judge at chambers on summons, the court or judge "may thereupon, by rule or order, direct that the plaintiff shall receive his costs;" and it was held that the statute left the matter discretionary with the court, and was not compulsory. (Jones v.Harrison, 6 Exch., 327; Latham v. Spedding, 20 L.I., N.S., 2 B., 302.) Had the legislature intended *Page 203 to confer an absolute right upon the party, it would not have required the idle ceremony of an application to the court for leave, but would have permitted the supplemental pleading to have been served of course. The statute would have conferred the right absolutely by appropriate words. (See Minor v. Mechanics'Bank, 1 Pet., 64; Malcom v. Rogers, 5 Cow., 188; King v.Corporation of Eyre, cited in Smith's Statutes, etc., 726.)
The supplemental answer takes the place of the former pleapuis darrien continuance; but it is not like that, a waiver of defences before interposed, and is not confined to matters arising since the last continuance. A plea puis darrien could not be rejected or treated as a nullity, because not pleaded in due time, or at the proper time; and could only be set aside upon application to the court; and the court in its discretion could permit the plea to stand. (Gra. Pr., 257, and cases cited.)
Delay in interposing the defence unexcused, was a reason for setting aside the plea; and delay in pleading an insolvent discharge, was regarded as sufficient to exclude the defence. (Sandford v. Sinclair, 3 Duer., 269; Desobry v. Morange, 18 J.R., 336; Valkenburgh v. Dederick, 1 J.C., 134.) Here issue was joined in the action in February, 1867. The discharge in bankruptcy was granted on the 5th of May, 1868, and no steps were taken to plead it, or suggestion made in respect to it until August, 1869, fifteen months after the discharge. Then the plaintiff's attorney said he would take no advantage of delay thereafter, assenting that the application when made should be treated as if made then. But there had already been a delay of fifteen months, and this was unanswerable, and there is no attempt to excuse it.
It is enough, that in this case after a delay of more than a year, the application to set up the discharge by supplemental answer, was addressed to the discretion of the court; and was not therefore, appealable to this court. The order of the court below was right, but for the reasons stated the appeal is dismissed with costs.
All concur. Appeal dismissed. *Page 204