12 How. Pr. 313 | New York Court of Common Pleas | 1856
The allegations, that the plaintiff is not the owner and holder of the note, and that E. F. Brown is the owner and real party in interest, create no issue, and amount to a mere traverse, which is not recognized by the Code. They do not deny the property in, and possession of the note by the plaintiff, and yet allege the note to belong to another. If these allegations were good, as a denial, they would be bad for duplicity. Each defence must be separately stated, and be an answer to the cause of action to which it is addressed. (10 Pr. Rep. 68; 5 Sand. 210; 8 Pr. Rep. 242.)
Perhaps, if the denial of the endorsement1 or delivery was not set up as a separate defence, the allegations just mentioned would be consistent with it and sustained. As to the first defence, therefore, the demurrer is well taken, but different considerations suggest themselves as to the residue of the answer.
I am aware that in several cases hypothetical pleading has been declared to be obnoxious, (6 Pr. Rep. 59, 84, 401; 14 Barb. 533; 5 Pr. R. 14; 7 Barb. 80,) and an examination of these cases show that' the peculiar form of denial, allowed by the Code, has not received the consideration which it required.
I suggest this with due deference to the learned judges who
Under that system there were but two pleas—the plea in abatement, and the plea of puis darrien continuance, which required a verification. The conscience of the party was not appealed to, and the pleader was not called upon to consider what his client could declare on oath, but what form he should adopt to place the defence on the record. But hypothetical pleading, even under that system, was not always condemned, as illustrated by Judge Woodruff in Ketcham agt. Zerega, (1 E. D. Smith, 553.)
The difficulty under which the defendant must rest as to the denial of what another did, which he .cannot deny, being ignorant thereof, and which he cannot admit for the same reason, is not considered in any of the cases mentioned, except in the case of Ketcham agt. Zerega. The Code has introduced' a system entirely new. It is not an alteration; it is a radical change; and § 140 not only abolishes all the forms of pleading hereto- _ fore existing, but provides that the rules by which the sufficiency of a pleading is to be determined, are prescribed by the act. This leads to the decision of the question, whether, under the Code, the answer of a defendant under oath, may be hypothetical, and, indeed, whether it can be otherwise in many cases which may arise.
The defendant, in this case, admits that he made the noto
Judge Woodruff very justly remarks, in Ketcham agt. Zerega, supra, and at page 560, “ It may often be true, that the defendant is wholly ignorant of the facts alleged by the plaintiff, and if so, he cannot be required to admit them. To compel him to do so is to do injustice.”
For these reasons, I think that a defence may be hypothetically predicated upon a fact alleged in the complaint, not presumptively within the knowledge of the defendant, when he denies any knowledge or information of such fact sufficient to form a belief, and, therefore, that the demurrer to the third and fourth defence is not well taken.
It was also insisted, on the argument, that the fourth defence was objectionable, because it did not set out in detail the facts and circumstances of the procurement of the note by the plaintiff to sue. The statute, before the Code, only required the defendant to give notice that he would insist upon and prove at the trial that the demand on which the action was founded had been bought and sold, or received for prosecution contrary to law without, setting forth any other particulars. (2 Revised Statutes, 4th ed., p. 475.) Nothing more is now required, and the fact of the procurement is alleged sufficiently for the defence it makes.
The judgment must be for the defendant, without costs to either party, and with liberty to the plaintiff to withdraw the demurrer, if he shall deem it advisable.