That the defendant, [stating if necessary any matter of discharge.] And the defendant denies each and every allegation, in said complaint contained, inconsistent with the foregoing allegations. (No. 11.) An answer, containing various forms of specific denial joined with counter statements or explanatory matter, to a complaint stated by paragraphs.1 SUPERIOR COURT-CITY OF NEW-YORK. Coe S. Buchanan and Chauncey Kilmer agt. John Campbell and Augustine Smith, impleaded with Arthur Morrell and John O'Hara. First. The defendants, John Campbell and Augustine Smith, answer the complaint of the plaintiffs in this action, so far as the same relates to them, and deny any knowledge or information thereof sufficient to form a belief as to the allegations in the first, second and third subdivisions of said complaint, except such information as in said complaint itself is contained, and therefore deny the same severally. Second. And further answering, the said defendants aver [alleging various matters by way of counter statement to the allegations in subdivision four of the complaint], and 'Adapted from the answer to Complaint No. 29, Part II., ante, p. they deny each and every allegation in the said complaint contained, inconsistent therewith. Third. And further answering, the said defendants deny, upon information and belief,1 that the said Morrell failed in business and stopped payment about the month of October, 1852; and they expressly deny each and every other allegation in the fifth subdivision of the plaintiffs' complaint contained. Fourth. And further answering, the said defendants deny each and every material allegation in subdivision six of said complaint set forth. They allege that [setting forth various matters, explanatory or by way of counter statement and defence]. Fifth. And further answering, the said defendants expressly deny each and every allegation in subdivision seven in said complaint contained, so far as the same relates to them or either of them; and they expressly deny each and every material allegation in said complaint contained, so far as the same relates to them or either of them, which they have not hereinbefore answered, admitted or denied." LAWTON & LARNED, Attorneys for John Campbell and Augustine Smith. 1 A denial upon information and belief seems to be one of the forms of denial allowed by the Code. The cases in which it may properly be used are pointed out by Justice HARRIS, in Edwards v. Lent, 8 How., 28; Pleadings, 437, et seq. 2 This is not a usual form of denial, and it may be doubted whether it can be properly used or made available in ordinary cases, inasmuch, as it is, as a general rule, unnecessary, to say the least, and perhaps improper to insert in the answer formal admissions of particular allegations in the complaint (see ante, p. 29, and note), which must be done in order to render such a form of denial pertinent or applicable. 69 1 (No. 12.) Specific denials and affirmative matter set up in a defence.1 SUPERIOR COURT-CITY OF NEW-YORK. John Lyon and Stewart S. Haff agt. Benjamin Blossom and Charles A. Blossom. The defendants, in answer to the plaintiffs' complaint, deny : First. That said Wright and Barney were unable to agree, or that they at any time, pursuant to the requirements of said instrument, selected Robert White as a third and disinterested party in the said appraisement. They deny that said White and Wright did agree that the value of the said property was $2,550. As to the writing in said complaint contained, purporting to be an appraisement of said property, signed by Wright and White, defendants say that they have no knowledge or information thereof sufficient to form a belief, and deny that the same was ever executed by them as appraisers or arbitrators under said agreement. Second. Defendants, for a further answer, say, that said White was never selected under and pursuant to the terms of said agreement by said Wright and Barney, and that said White had no authority to act in the premises. That the said paper, purporting to be an appraisal by said Wright and White, was drawn up by one of the plaintiffs, and that the same was not signed, nor was said appraisal made at any meeting of the appraisers or arbi 1 To Complaint No. 50, Part III., ante, p. 446. trators named in said agreement or submission, and that the same is void. That said Wright and Barney had never determined that they could not agree at the time of the alleged appointment of the said White; and that said Wright and Barney, at their last meeting, as said appraisers or arbitrators, parted with the intention of again meeting on the subject of said award and appraisal, and that without any such meeting or notice thereof, and in the absence of said Barney, said appraisal, set forth in plaintiffs' complaint, was agreed upon and signed. BEEBE, DEAN & DONOHUE, (2.) ANSWERS IN ABATEMENT OF THE ACTION. (No. 13.) Another action depending for the same cause.1 Title of the Cause. The defendant, in answer to the plaintiff's complaint, says: 1 It does not yet seem to be entirely settled, whether matter in abatement of the action may be pleaded with matter in bar. The better opinion, however, seems to be, that it cannot, and the case of Gardiner v. Clark (6 How., 449) is regarded as furnishing the correct rule on this subject. (See authorities cited, Pleadings, 387, 388; also Voorhies' Code, 5th ed., p. 176.) In Zabriskie v. Smith (3 Ker., 322), the case of Gardian v. Clark is cited with approbation; and since then the same doctrine has been applied both at General and Special Term, and a defence in abatement, joined with an answer in bar, struck out of the answer, on motion. (Van Buskirk v. Roberts, 14 How., 61, referring to Smith v. Crampton, Cayuga General Term, ibid., p. 64.) That before the commencement of this action the plaintiff commenced a suit against this defendant in the Supreme Court upon the same promissory note set forth in the complaint in this action, [or whatever else the subject of the action may be, specifying it,] and that the parties in this and the former action are the same, and said action so brought and prosecuted is still pending in said court and undetermined. (No. 14.) Non-joinder of a party defendant. Title of the Cause. The defendant, in answer to the plaintiff's complaint in this action, says: That the agreement mentioned and set forth in said complaint, if any such was ever made,' was made by the said defendant jointly with one E. F., who is still living, at the city of Albany, and not by the defendant alone.2 1 Hypothetical pleadings are not allowed; that is, where an entire allegation, constituting a portion of the subject matter of the complaint or defence, is hypothetically stated, it is bad. But where a mere hypothetical or qualifying expression is connected with a positive statement of fact, by way of defence (as above), such form of pleading is not objectional, and, indeed, cannot be strictly called hypothetical pleading. (See this principle discussed in cases cited, Pleadings, 529-532.) 2 As to the proper parties defendants in an action on contract, see Pleadings, 161, et seq. The answer should not only allege the fact of there being another joint contractor living, but should point him out by name. If a defendant insists that his liability is joint, and that others who are jointly liable with him should be joined in the action, he must not only plead the non-joinder, but, in so doing, must point out in his answer all those who he claims should be parties defendant. (Fowler v. Kennedy, 2 Abbott, 351.) |