35 N.Y.S. 744 | N.Y. Sup. Ct. | 1895
This action is on a promissory note, of which the plaintiffs are the payees, and the defendant the maker. The complaint, in addition to setting up a copy of the note, alleges that the note was made and delivered for value, and that the amount thereof is due from the defendant. The answer contains several separate defenses, the first of which reads: “This defendant denies that the promissory note mentioned in the second paragraph of the complaint was made for value. He alleges that it was without any consideration.” And this is followed with a denial that any sum “is due and owing from the defendant.” The second defense is of new matter, but does not allege a counterclaim or set-off. It contains a narrative statement of the facts, showing certain stock transactions of the parties, out of which was created a false account against the defendant, for which he was induced to give the note in suit. In addition to giving a statement of all the circumstances under which the note was made, it renewed the allegations in the first defense that the note was without any legal or valuable consideration, and that the defendant is not justly indebted to the plaintiffs in any sum whatever.
Undoubtedly, the appellant is right in his contention that the answer gainsaid the plaintiffs’ cause of action. Although the defendant does not deny the making of the note, he does not thereby admit the plaintiffs’ cause of action, for he specifically denies the allegation in the complaint that it was made for value, and alleges that it was wholly without consideration. And the plaintiffs have not a cause of action if such be the fact. The appellant, starting with the proposition to which we have given assent, insists that
The question sharply presented to the court was whether the fact that the trial of the counterclaim might involve an examination of a long account would justify a compulsory reference of the issues, where the plaintiffs’ cause of action was controverted and nonreferable. Necessarily, therefore, the question involved in this case was not brought to the attention of the court, and the language employed by it was not chosen with reference to this situation. The ground of the decision was that as the constitution declared that trial by jury should remain inviolate forever in every instance where it had theretofore existed, and as at the date of the adoption of the constitution the law of pleading would not permit an assertion of a counterclaim, unless the defendant should admit the truth of the plaintiffs’ allegations, it followed, under the practice theretofore in vogue, that there could not have been a counterclaim when plaintiffs’ cause of action was gainsaid. Hence the necessity for the examination of an account, in connection with a counterclaim, could not support a compulsory reference of the issues, unless plaintiffs’ cause of action was admitted, or was itself referable in its nature. And, as such was the law at the time of the adoption of the constitution in 1777, it follows that in such cases its guaranty of trial by jury requires that the words “on- either side,” in the section of the Code referring to compulsory references, be construed: with this implied limitation. But, in reaching such conclusions, courts have from time to time used more comprehensive language than was required to assert that a cause cannot be compulsorily referred when a nonreferable cause of action is put in issue, by an answer which at the same time sets up a counterclaim involving a long account, and have said “that plaintiff’s right to a jury trial in such cases could not be taken away or destroyed by anything which the defendant may set up in his answer.” The courts have not said, nor have they intended to be understood as saying, that
The issues presented by these pleadings must be tried, in order that the plaintiffs may sustain the cause of action alleged in their complaint. It appears that, while the action is not brought upon an account, the trial of such issues will necessarily directly involve the examination of a long account; and, that being so, we think the cause is referable.
The order should be affirmed, with $10 costs and printing disbursements. All concur.