12 N.Y.S. 356 | N.Y. Sup. Ct. | 1890
The complaint alleges the incorporation of the California Land & Timber Company, under the laws of California, with a capital stock of $1,000,000, divided into 10,000 shares, and that, at the time the debt therein set forth was incurred, 6,000 shares of capital stock had been subscribed, and no more; that at the time said debt was contracted the defendant was-the owner and holder, and there stood in his name upon the books of the corporation 400 shares of the capital stock of the corporation; that on said date-the said corporation duly made and executed to one Davidson its promissory note, payable SO days afterdate, for $10,000, and at the time of the making of' said note one James T. Boyd was the president, and H.I. Hation Was thesecretary, of said company, they being the parties who executed the note on its-behalf; and that in March, 1888, said Davidson for a good and valuable consideration assigned, transferred, and delivered the promissory note in question to the plaintiff, who thereupon became, and still is, the lawful owner and holder
The whole argument of the appellant to sustain this appeal rests upon some supposed allegation contained in the counter-claim that this action was being prosecuted for the benefit of James T. Boyd, and that the question as to the validity of the counter-claim was to be treated in the same manner as though James T. Boyd was the plaintiff in the action. We have examined the counter-claim in vain to find any such allegation. It is true that it is alleged in the tenth paragraph that James T. Boyd is thereal party in interest; but that allegation relates only to the defense set up in that answer, namely, the defense of payment. When we come to the counter-claim, we find no such allegation. It is a familiar rule of pleading that a defendant may set forth in his answer as many defenses or counter-claims as he chooses; but it is equally well settled that each defense or counter-claim must be separately stated and numbered, (section 507, Code Civil Proc.,) and therefore each defense and counter-claim must be complete in itself, and allegations contained in another part of the answer, not referred to in the counter-claim, cannot avail to help out the pleading. In the case at bar, the counter-claim contains no allegations of any relations between James T. Boyd and the plaintiff.- It contains no reference to any allegations contained in the separate answer wherein it is alleged that James T. Boyd was the real party in interest. Under such circumstances, the allegations in the counter-claim utterly failed to state any cause of action which the defendant might avail himself of either as a counter-claim or set-off. Under this condition of the pleadings, it is clear that the demurrer was well taken, and, although the decision in the court' below did