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maritime jurisdiction may issue against the said barge or boat Highlander, her tackle, apparel and furniture, and that all persons having or pretending to have any right, title or interest therein may be cited to appear and answer, all and singular, the matters so propounded, and that this honorable court would be pleased to pronounce for the claim aforesaid, and to decree such other or further relief as the court is competent to give in the premises, and also to condemn said boat or barge Highlander, her tackle, apparel and furniture, and all persons intervening for their interest therein in costs. THE HUDSON RIVER STEAMBOAT Co.,
By HENRY SMITH, Agent.
Form of a pleading under the Code in an equitable action in
which the allegations are set forth in separate paragraphs or articles.
agt. The Hudson River Railroad Company and
The Mayor, Aldermen and Commonalty
James Moore, plaintiff, complains:
"I am indebted to David DUDLEY FIELD, Esq., for this precedent. Mr. Field recommends in all cases the practice of stating the cause of action in separate paragraphs or articles, in accordance with the mode of pleading in admiralty. (See note, ante page 23.)
southwest corner of Tenth avenue and Thirtieth street, in the city of New York, on which he has erected a fourstory brick dwelling-house intended for a hotel.
Second. That the Hudson River Railroad Company, a corporation created by the Legislature of this state, by an act entitled, “An Act to authorize the construction of a railroad from New-York to Albany,” passed May 12th, 1846, and various acts amending the same, and keeping an office for the transaction of business within the city of New-York, have laid down their track through the Tenth avenue, from its southerly end to Thirtieth street, and thence around the said southwest corner, and in a line nearly direct to the intersection of Eleventh avenue and Thirty-first street.
Third. That the said company have laid their track so near the said southwest corner, that when the cars pass, they project over the curb and sidewalk about eighteen inches.
Fourth. That passing so near the corner is entirely unnecessary, and without any right on the part of the said company, and is a serious annoyance and damage to the plaintiff
. Fifth. That in laying down their track, the said company were bound to keep as closely as possible to the middle of the street, and that they might have so laid it as that their cars would not overreach any part of the curb or sidewalk, but keep at a considerable distance therefrom, as they were under a legal obligation to do.
This is merely the allegation of a conclusion of law, which cannot properly be made in a pleading. (See Plead., pp. 355, 356.)
? This is also a legal conclusion. The answer to the complaint, (see post p. 41.) takes issue upon these allegations, which is unnecessary, the issue so formed being entirely immaterial. (See Plead., pp. 739, 740.)
Sixth. That the said company have been so running for two years and upwards, during which time they have been repeatedly applied to by the plaintiff to remove their track to a greater distance, and have often promised to do so, but have never yet done it.
Seventh. That by reason of the said track being so near the corner, the plaintiff cannot obtain so great a rent for his said building as he might otherwise; and he is in other respects injured in the enjoyment and value of the pro perty.
Eighth. That the said track, lying so near the corner, with the running of cars thereon, is a private nuisance, specially injurious to the plaintiff, and to certain other persons having occasion to do business at his said house.
Ninth. That the only permission or authority the defendants ever had to lay the track in the streets of the city of New York, was that contained in the ordinance of the common council, of which a copy is hereto annexed, marked “A;” that in laying their track at the corner above mentioned, the defendants have not conformed to the said ordinance; and that on the 11th of August, 1851, the common council of the city of New-York, duly passed another ordinance, of which a copy is hereto annexed, marked "B," of which the defendants then and there had notice, but have hitherto refused to obey it, or change their said track.
Wherefore, the plaintiff demands judgment, that the defendants remove their said track to a greater distance from the corner, and to the centre of the avenue, and that they pay the plaintiff the damage which he has sustained by its being where it now is, which the plaintiff claims to the amount of five thousand dollars.
JAMES S. SLUYTER,
Answer to bill in equity, (Have;ley v. Becker, ante No. 1.)
The formal parts, and such as would be regarded in a pleading under the Code as surplusage, or improperly stated, being in italics.
The answer of Gideon Becker, defendant, to the bill of
complaint of Jacob Haverly and John Allen, Jr., complainants.
This defendant, now and at all times hereafter, saving and reserving to himself all manner of benefit and advantage of exception to the many errors and insufficiencies in the complainants bill of complaint contained, for answer thereunto, or unto so much or such parts thereof as this defendant is advised it is material for him to make answer unto, he answers and says, that he admits that on the 6th day of December, in the year 1842, one Abraham L. Dietz, mentioned in the complainants' bill of complaint, was the owner of a certain piece or parcel of land situate in the towns of Knox and Berne, of the value and description particularly set forth in the said bill of complaint. And this defendant further answering says, that he is ignorant and cannot set forth as to his belief or otherwise, whether the said Abraham L. Dietz was, on the said 6th day of December, 1842, indebted to the said com
1 A formal admission of a fact in an answer is altogether unnecessary; and indeed such admissions, it has been held, in one case, are improper. (See Gould v. Williams, 9 How., 51.) Every material allegation of fact not put in issue by a general or specific denial, is to be deemed admitted for the purposes of the action. (See Plead., 759, 764.) It has, however, been also held, that an admission may properly be made in an answer for the purpose of denying each and every allegation therein, except what is admitted. (Parshall v. Tillon, 13 How., 7.)
plainants in the sum mentioned in their said bill of complaint,' or whether the said Abraham L. Dietz executed a bond and warrant of attorney to the said complainants, with the view of making said debt a lien upon said piece or parcel of land; or whether a judgment was entered on said bond and warrant of attorney; or whether the said Abraham L. Deitz and the said complainants understood, or intended, that by the execution of said bond and warrant, and the entry of the judgment thereon, the said debt should or had become a lien on said real estate, as in said complainants' bill is set forth.
And this defendant further answering, admits, that the said Abraham L. Dietz sold and conveyed. the said land and premises in said bill of complaint described, by deed, bearing date the 9th day of February, 1843, to this defendant. That said deed was duly acknowledged by the said Abraham L. Dietz, and Evina his wife, on the 11th day of February, 1843, and delivered to this defendant ; and that this defendant thereupon became, and still is, the owner of said land and premises.
And this defendant further answering, says, that at the time of the sale and conveyance of said real estate, by said Abraham L. Dietz to this defendant, this defendant was informed by said Abraham L. Dietz, that said land was encumbered to an amount between three and four hundred dollars; that such incumbrances consisted of rent due to Stephen Van Rensselaer and several judgments in favor of other persons; that it was stated by said Dietz at that time,
· This form of denial, “that the defendant is ignorant of whether," &c., has been held defective and insufficient under the Code. (Wood v. Staniel, 3 Code R., 152.) The Code requires the denial to be general and specific, or “of any knowledge or information thereof sufficient to form a belief.” As to the form and proper mode of making such denials, see Plead 431, et. seq.