« ΠροηγούμενηΣυνέχεια »
And, for a further plea in this behalf, the defendants, by leave of the court, here for this purpose, first had and obtained, according to the form of the statute in such case made and provided, say, that the said plaintiffs ought not to have or maintain their aforesaid action thereof against them, because they say that at and before the time of the alleged commission of the grievances, &c., there was and still is a certain street called Furman-street, which had been duly and lawfully laid out and opened in the First ward of the city of Brooklyn, in pursuance of and according to an Act of the Legislature of the State of New-York, passed in the year 1833, and of the Act of the 6th of April, 1838, the east side or line whereof run along and adjacent to the premises of the said Peter W. Radcliff; that in pursuance of the directions contained in said acts, the defendants, as a municipal corporation, in common council convened, proceeded to take and did take regular and lega proceeding, for the grading and leveling of said street, and that they selected suitable and competent persons to grade and level said street, and that in such grading and leveling, &c., the plaintiffs' testator neglected to maintain and uphold his land which lay above the level or grade of such street, the same or portions thereof fell, which are the same supposed grievances in the several counts of the plaintiffs' declaration mentioned, without this, that the defendants dug away or caused or procured to be dug away, the bank or habitual support of the premises of the plaintiffs' testator, or undermined said premises otherwise than in this plea mentioned, or were guilty of any negligence or improvidence or want of due care, caution, precaution, or of improper management in that behalf, and this the said defendants are ready to verify, wherefore they pray judgment if the said plaintiffs ought not to have or maintain their aforesaid action against them, &c.
And the said defendants, for a further plea? in this behalf, by leave of the court here, for this purpose first had and obtained, and according to the form of the statute in such case made and provided, say, that at and before the alleged grievances complained of in the said plaintiffs' declaration, there was and still is a certain street or public highway, called Furman-street, which the said defendants, a municipal corporation, by virtue of the powers conferred upon them by law, proceeded to grade, regulate and pave, the east side or line whereof ran along or adjacent to the premises of the plaintiffs' testator, and in the regulating, paving and grading the same, they selected and employed fit and proper persons to grade and level the said street, and that in such grading, the plaintiffs' testator neglected to sustain and uphold his land, which lay above the level or grade of such street, the same or portion thereof fell, which are the same supposed grievances in the several counts in the plaintiffs' declaration mentioned, without this, that the defendants dug away or caused or procured to be dug away, the bank or natural support of the premises of the plaintiffs' testator, or undermined said premises or otherwise than in this plea mentioned were guilty of any negligence, improvidence, or want of due care, caution, precaution or of improper management in that behalf, and this the said defendants are ready to verify, wherefore they pray judgment if the said plaintiffs ought to have or maintain their aforesaid action against them, &c.3
1 Instead of this formal mode of traverse, the defendant must now put in issue the allegations of negligence, want of care, &c., either by a general or direct specific denial.
3 It will be observed that these two pleas set forth the same defence, in slightly different forms. This is improper in an answer as well as
Answer in admiralty to a libel in personam. (Dormandy v.
Comstock, ante, No. 4.) The formal parts are in italics.
To the Honorable Samuel R. Betts, Judge of the District
Court of the United States in and for the Southern District of New-York.
And now Amos Comstock, Captain of the steamboat Commerce, appears before this honorable court, and for answer to the libel and complaint of Ichabod Rogers, John C. Dormandy, and George H. Power against him, alleges and articulately propounds as follows.
First. That as said steamboat Commerce was on her course down the Hudson river with barges and canal boats in tow, having a barge and two canal boats on each side, and other boats astern, and had arrived at a point on the Hudson river opposite East Camp, and a little above what is known as "the nine mile tree," about three miles below Catskill, before day light and about two o'clock A. M., and was proceeding about three miles an hour through the water, and steering down the river, a light was first observed from said steamboat over the starboard bow of said steamboat to the westward of the course of said steamboat, and at some distance farther down the river than said steamboat was, and afterwards a sloop which turned out to be the Betsy and Ann, in whose rigging the light was placed, was observed from said steamboat as said steamboat was proceeding on her course aforesaid, appar
in a complaint. (See note, ante, p. 18.) For though a defendant may set forth as many defences as he may have, yet they must be substantially different defences, and not the same defence under different forms. (Plead., 517.)
ently lying at anchor about one-third of the way from the west shore, and heading directly up in a direction fore and aft the river, in the reach of the river where the collision took place, and with her sails lowered; that about the time or after the discovery of said sloop from said steamboat Commerce in a direction over her starboard bows, a steamboat was observed from the Commerce to be coming up the river from a point below said sloop and to the westward of said steamboat, which said steamboat coming up the river passed close to the eastward of the outside boat on the larboard side of the steamboat Commerce just previous to the collision with said sloop, that at the time said steamboat going up the river passed the Commerce and her fleet as aforesaid, and until said steamboat Commerce had proceeded to a point about two lengths higher up the river than said sloop, the said steamboat Commerce and her towboats were on a course about straight down the river, and so far to the eastward of said sloop as to have passed said sloop at a proper and safe distance, if said sloop, when said steamboat was within about two lengths as aforesaid, had not taken a sudden and rank sheer to the eastward, from a direction about straight up the river to a direction about athwart or quartering the river, and so as to run the bowsprit of said sloop into the outside canal boat on the starboard side of said steamboat, the end of the bowsprit of the sloop striking about amidships or something aft of the middle of said canal boat, thereby doing damage to said canal boat and her cargo to the amount, as this respondent is informed and believes, of one hundred and ten dollars and upwards. That at the time of said collision the tide was running strong ebb, and the said sloop was deep in the water, and that said collision happened from the sudden change of direction or sheer of said sloop as aforesaid, in consequence of the negligence or fault of the persons in charge of said sloop. And this respondent denies that said steamboat Commerce was negligently or with great force and violence run against or into said sloop, and he also denies that any barge or canal boat in her tow was thrown against or run into said sloop as alleged in the second article of said libel.
Second. And this respondent further says, that all due and proper precautionary measures were taken by the persons in charge of said steamboat to prevent and to avoid said collision and to prevent damage therefrom, but that all due and proper precautionary measures were not taken by the persons in charge of said sloop to avoid the same, and that the said collision might have been avoided if there had been an anchor, watch, or a man on deck, to have prevented said sloop from sheering as aforesaid, as there ought to have been, or the said collision might otherwise have been avoided by the taking of due and proper precautionary measures by the persons in charge of said sloop, and that said collision did not happen without some fault on the part of the persons in charge of said sloop conducing thereto.
Third. That this respondent has no information, except from the libel, of the extent or particulars of the damage to said sloop or to the said libellants alleged in the second and third articles of the libel, and he therefore does not admit the said allegation in said libel respecting the damage from said collision nor any part thereof, and leaves the said libellants to prove the same and every part thereof, and this respondent alleges and insists that he is not liable for any part of such damages.?
Fourth. And this respondent, from like want of informa
1 This is unnecessary in a pleading under the Code. The denial of s information” alone as above, would not be sufficient to put the allegation at issue. (See Plead., 434, 435.)