73 N.Y.S. 381 | N.Y. App. Div. | 1901
. There is an appeal in this case from a decision of the Special Term directing judgment overruling a demurrer and dismissing the complaint. As no such appeal is allowed by the Code that appeal must be dismissed. The plaintiff also appeals from a final judgment overruling the plaintiff’s demurrer and dismissing the complaint, and that appeal brings before us the correctness of the decision upon which the judgment was entered.
The action was brought to recover the damages sustained by the plaintiff by reason of the delivery to the plaintiff, by the defendants’ testator of a certain note purporting to be made by Joseph Robinson and Edward F. Riley, and also a mortgage to secure the payment of such note upon certain property in the city of Chicago, State of Illinois, which note and mortgage were not signed and executed by one of the obligors. The defendants answered, setting
We think that upon a demurrer by a plaintiff to a .defense set up in the defendants’ answer, the court was not authorized to enter a judgment dismissing the complaint. There is no question as to the rule that where one party demurs to his opponent’s pleading the Court may consider the former pleading in the action. Thus, if a plaintiff demurs to a defendant’s answer, the court may look into the complaint, and if no cause of action is alleged may overrule the plaintiff’s demurrer; but the judgment that can then be entered could only be one overruling the plaintiff’s demurrer to the answer and not upon such a demurrer dismissing the complaint. The sufficiency of the complaint was attacked by no pleading of the defendants. The defendants answered the complaint, and .upon the determination of a question of law arising upon a demurrer to the answer, while the court would not sustain such a .demurrer, no matter how insufficient the answer was, if no cause of action was alleged in the complaint, to entitle a defendant to a judgment dismissing the complaint the sufficiency of the complaint must be -attacked by a pleading directly raising that question upon the trial which results in the judgment dismissing the complaint.
Section 488 of the Code prescribes cases in which a defendant may demur to the complaint, which demurrer must, by section 490 -of the Code, distinctly state the objections thereto; and by section 494 it is provided that the plaintiff may demur to a counterclaim or a defense consisting of new matter contained in the answer on the ground that it is insufficient in law on the face thereof; and the decision of the court upon such a demurrer is prescribed by section 1021 of the Code. There is nothing in these provisions which justifies the court in directing á final judgment dismissing the complaint where the sufficiency of the complaint has not been attacked by a pleading, and where the only question presented is as to the sufficiency of a defense set up in the answer. The defend
The court having overruled the demurrer to this defense, upon the ground that the complaint failed to state facts sufficient to constitute 'a cause of action, the first question presented is as' to the sufficiency of the complaint. It is there alleged that on the 1st day of March,. 1900, the plaintiff sold and conveyed to the defendants’ testator three lots of land, with the buildings thereon, in the city of New York, and that as part of the consideration for such transfer-the defendants’ testator indorsed and delivered to the plaintiff a certain promissory note for §75,000, dated January 13, 1899, payable three years after date, with interest at the rate of five per cent, purporting to be made by Joseph Robinson and Edward. F. Riley to the order of the defendants’ testator, and assigned to the plaintiff a certain mortgage represented by the said Doane to have been executed by said Joseph Robinson and Edward F. Riley and delivered by them to him to secure the payment of the aforesaid note, with interest, which mortgage was represented by said Doane to be a first lien on certain property located in the city of Chicago, State of Illinois, which mortgage also purported to be executed by said-Robinson and Riley and which was duly recorded; and that said-note and mortgage so accepted in part payment of -the transfer of said property were spurious and void, and were never signed by said Edward F. Riley, nor by any one having his authority ; that at and before the time of the conveyance, - assignment and transfer-aforesaid the defendants’ testator represented to the plaintiff that the said note and mortgage were executed by said Joseph Robinson and Edward F. Riley, and that interest amounting to §4,2.42 -was-accrued, due and payable thereon, and that the plaintiff had no-knowledge that the said note or mortgage was spurious, but accepted the same, together with -the alleged accrued interest thereon, in good faith, relying upon the assignment, indorsement and representations of said defendants’ testator as to the genuineness of said instruments and the accrued interest thereon, and that by reason of the premises the plaintiff has been damaged in the sum of $99,242. Wherefore, the plaintiff demands judgment against the defendants-for that sum. ., •
Turning to the second defense, it must be, we think, conceded that the facts alleged fail to establish a defense to this cause of action to recover the damages sustained by the plaintiff. His cause of action is confined to the damages that he had sustained at the commencement of the action. If no such damage is proved, there can be a recovery for nominal damages only. The subsequent acts óf the defendants or the makers of the note, or of the owner of the property covered by the mortgage, which ..would ,tend to validate
It follows that the judgment appealed from must be reversed, with costs, and the demurrer sustained, with costs, with leave to the defendants to amend their answer upon payment of costs.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave-to defendants to amend on payment of costs in this court and in the court below.