« ΠροηγούμενηΣυνέχεια »
tion would leave the said libellants to prove that they were or are the owners of the said sloop Betsy and Ann, her tackle, apparel or furniture, as alleged in said libel, and that said sloop was tight, staunch and strong and well manned, tackled appareled and appointed, and that she was safely anchored.
Fifth. And this respondent admits that said libellant had notified the owners of said steamboat that they had sustained damage from the collision aforesaid, to the amount of fortyfive dollars before this suit was commenced.?
Sixth. That all and singular the premises are true in verification whereof if denied, the said respondent claims leave to refer to the depositions and other proofs, to be by him exhibited in this cause.
Wherefore this respondent prays that this honorable court will be pleased to pronounce against the libel aforesaid, and to condemn the libellants in costs and otherwise right and justice to administer in the premises.
( No. 10.)
Answer under the Code (to complaint, ante, No. 6,) in which
the allegations are set forth in separate paragraphs or articles.
NEW-YORK SUPERIOR COURT.
agt. The Hudson River Railroad Company, and
The Mayor &c., of New York.
The defendants' answer to the plaintiff's complaint:
1 This would also be an insufficient denial.
? This would be unnecessary and superfluous in a pleading under the Code.
First. That they have no knowledge as to the ownership of the lot at the southwest corner of the Tenthavenue and Thirtieth-street, nor of the purpose for which the building thereon was erected.
Second. The defendants say, that by the act of the Legislature of this State, referred to in the complaint, the defendants were authorized to locate their railroad on any of the streets or avenues of the city of New York, westerly of and including the Eighth-avenue, and on or westerly of Hudson-street, provided the assent of the corporation of said city be first obtained for such location. They further say, that the Tenth-avenue and Thirtiethstreet, and the Eleventh-avenue and Thirty-first-street, in the complaint mentioned, were and are avenues and streets respectively, westerly of the Eighth-avenue mentioned in the said Act. That such avenues and streets include what in the complaint are called side walks. That the assent of the corporation of the city of New-York was first obtained for the location of the railroad of the defendants by an ordinance of the corporation of the city of NewYork, approved by the Mayor of that city, on the sixth day of May, in the year of our Lord eighteen hundred and forty-seven (the conditions of which ordinance have been complied with), and thereupon the defendants lawfully laid their railroad in the said streets, according to the said assent, as the same is laid, and not otherwise.
Third. They deny that the track of the said railroad is laid so near the southwest corner of the Tenth-avenue and Thirtieth-street as is stated in the complaint ; but they submit, that by reason of the said act of the Legislature and assent aforesaid, they have the right to lay the said track in the manner stated in the third article of the complaint.'
1 The denial is insufficient. It should be not only of knowledge, but also of information sufficient to form a belief. (Plead., 434, 435.)
Fourth. They deny that the track of the said road passing so near the said corner is unnecessary, or that it is without right, or that it is an annoyance or damage to the plaintiff.
Fifth. They deny that the defendants were under any obligation to lay down their track in the manner alleged in the fifth article of the complaint.?
Sixth. The defendants deny that there have been such applications by the plaintiff, or such promises by the defendants, as are alleged in the sixth article of the complaint.
Seventh. They deny that by reason of the track of their railroad being laid as it is, the plaintiff cannot obtain so great a rent for his building as he might otherwise, or that he is by reason thereof, otherwise injured in the enjoyment or value of the property.
And they submit and insist, that the defendants are not bound to remove the track of their said railroad, or to pay the plaintiff any sum whatever for damages, or that the plaintiff has sustained any damage by the said track being where it now is.
Eighth. They deny that the rail track lying so near the corner, with the running of the cars, is injurious to the plaintiff in manner and form, or in substance, as is alleged in the eighth clause or article of the amended complaint; and they deny it to be a private nuisance.
And by way of further answer in this behalf, the defendants say, that the plaintiff erected the house upon his said lot, and with knowledge of the course and track of the said railway as the same was in substance afterwards laid, and demised the same for a term not yet expired, for the full and fair value of the said lot; and the defendants deny that the interest of the plaintiff as reversioner is or can be injured by the said track as laid, until the expiration of his term ; and until that time he is not entitled to bring his action, because, they say, that if the said location of the track, and running of the cars thereon, should, in fact, be found to be a private nuisance, the same can be, and will be altered and changed according to any such necessity.'
"This reference to the court of a mere conclusion of law, is of course superfluous.
2 The denial of a legal duty or obligation does not raise an issue of any kind, and is improperly inserted in the pleading.
3 This also is superfluous.
Ninth. The defendants deny that the only permission or authority which they ever had to lay the track on the streets of New-York, was that contained in the ordinance referred to in the complaint as copied, schedule A.
They say that their track was laid under the inspection and with the assent of the proper officers in this behalf of the city of New-York, and that the same was in substance laid down according to their right and duty in this behalf.
And they submit and insist, that the other ordinance alleged in the amended complaint, as contained in B., annexed to the complaint, as the same is therein alleged, was not binding on these defendants, nor was the same notified to these defendants by the proper officer of the said corporation, or otherwise lawfully; nor were these defendants actually at the time bound thereby.?
· This is clearly irrelevant, it being the assertion of a legal proposition accompanied by an argument in support of it.
2 These allegations are of the same character as the above noted, referring to the court were conclusions of law, and are improperly inserted in the answer. An averment that a party is “bound” or "legally bound" to do a thing is the averment of a conclusion of law and is immaterial and irrelevant. Corey o. Mann, 14 How., 163; and bee Plead., pp. 282–284, and cases there cited.
Last. The defendants object to the joining of the Mayor, Aldermen and Commonalty as parties to this suit," and deny that they have sustained any injury by reason of any matter alleged in the complaint.
THOMAS M. NORTH,
• If the complaint shows that these defendants were improperly joined, they should have demurred.