115 N.Y.S. 870 | N.Y. App. Div. | 1909
This action was commenced in Justice’s Court by the service of a summons with a verified complaint. . The complaint alleged that the plaintiffs sold and delivered to the defendant, between April 1 and.
I think the decision is erroneous. No allegation óf the complaint has been denied. As to the suit and material in question, the defendant expressly admits the purchase, but seeks to avoid liability because, of the failure of the plaintiffs to perform an executory agreement in connection with the sale. There was nothing for the jfiaintiffs to prove, the amount of the bill m i‘oto being admitted by the failure of the defendant to deny. The question at issue turns upon the consideration to be placed upon the amendment to section 2891, effected by chapter 291 of the Laws of 1906.- Prior to the amendment, the section provided that if a defendant failed to appear and answer, the plaintiff could not recover without proving his case.
In Harley v. Fitzgerald (84 Hun, 305) it was held that in Jusr tice’s Court the right of a plaintiff to.-open and close the casé is a substantial right, and a failure to grfent it a fatal error. That case arose before the amendment, it is true, but it -was held that the provision requiring the plaintiff to prove his case did not apply where the defendant appeared and answered. The learned counsel for the respondent attempts to distinguish it from the case at bar on the ground that there the complaint was not Verified, but it cannot be that the Legislature intended by the amendment to give to an unverified complaint greater force than to a verified one, so that in the former case proof need not be made, while it would be exacted where the complaint was sworn to.
Even as to the suit and material for alteration, there was no issue raised by the answer in the form of a denial. The defendant admits the purchase but'denies liability because of the failure to make the suit fit. It is in the nature of confession and avoidance, but, as was said in Smith v. Coe (170 N. Y. 162, 167), “there was no denial, general or specific, of- the allegations of the complaint referred to, éxcept so far as such denial could be spelled out or inferred from an inconsistent version of the transaction given by the pleader iri the answer. The allegations of a complaint are controverted or put in issue only by a general or specific denial. A material fact alleged is not controverted or put in issue by a statement inconsistent with the facts alleged, or from which a general denial may be implied or inferred. (Rodgers v. Clement, 162 N. Y.
The judgment of the County Court and of the justice should be reversed, with costs.
Woodward, Jenks, Gaynor and Burr, JJ., concurred.
Judgment of the County Court of Nassau county and of the Justice’s Court reversed, with costs.
See Laws of 1880, chao. 178.— [Rep.