26 N.Y.S. 790 | The Superior Court of the City of New York and Buffalo | 1893
An action having been commenced, izi this court, in August, 1890, by the plaintiff herein against Clark Balcom, an attachment issued against the property of said Balcom. In September, 1890, the defendants herein executed an u-ndertak
The allegation that the attachment was discharged was not essential to a recovery by plaintiff, and was not put in issue by a denial. In Griffin v. Railroad Co., 101 N. Y. 348, 4 N. E. 740, the court say:
“A general or specific denial controverts only material allegations, or such facts as the plaintiff would be compelled to prove in order to establish his cause of action.”
See Fox v. Turner, (Sup.) 2 N. Y. Supp. 164. The Code (section 500) calls for a denial only “of each material allegation of the complaint.” Immaterial averments are not put at issue by a general or specific denial. Linton v. Fireworks Co., 124 N. Y. 536, 27 N. E. 406. The allegations in the complaint that the attachment was discharged must be regarded as an effort to anticipate and deny a possible defense, and as mere surplusage. Having executed the undertaking, if the defendants seek to escape liability thereunder, by reason of a failure to discharge the attachment, the burden is cast upon them to prove it, which they cannot do without alleging it in their answer. See Linton v. Fireworks Co., supra; Clark v. Thorp, 2 Bosw. 680. The law will not assume that the undertaking was wrongfully obtained; and, upon proof of the undertaking, the burden is cast upon the defendants to prove—“and hence of alleging in their answer”—facts which avoid the undertaking.
The second ground of dismissal urged by the learned counsel for defendants is also without merit. Sureties on an undertaking, when sued, cannot defend upon the ground of any irregularity in the proceedings. Jewett v. Crane, 35 Barb. 208; Higgins v. Healy,
“It does not lie with the defendants to object that the sureties were not approved of by the commissioner. The waiver of approval was injurious to the plaintiffs, if to anybody. That benefit they have a right to waive.”
In answer to the third objection urged to a recovery by the plaintiff, it may be said that the presumption is that the undertaking was given under circumstances which made it valid, and that it accomplished the purpose and object for which it was given. Coleman v. Bean, 32 How. Pr. 370. If, after the undertaking was received by the plaintiff, its object was defeated, such fact, if it be any defense, cannot be made available here by the defendants, unless set up in the answer. There is nothing in the case to show that the bond is not a valid and binding obligation on the defendants, and we cannot assume, without proof, that there were omissions or commissions that will relieve the defendants from liability thereunder. Coleman v. Bean, supra. Plaintiff established his case, and a right to recover, when he proved the undertaking, the recovery of judgment against Balcom, the demand of, payment of said judgment, and its nonpayment. Judgment must be ordered upon the verdict in favor of plaintiff, with costs.