Satterlee v. Sterling

8 Cow. 233 | N.Y. Sup. Ct. | 1828

Curia, per Woodworth, J.

I think the demurrer well taken. It is true, the replication commences .by saying *the writ issued within six years after the cause of action accrued. This, however, is mere matter of inducement. The material allegations are that the writ issued July 1st, 1826, returnable at the August term, and that the defendant promised within six years before that day.

The replication, then, presented two facts, both necessary, in order to support the action. If the defendant can negative either, his defence must prevail. He must either deny the issuing of the writ, or take issue on the promise. Either would form a good defence; for, if there was no such writ as alleged, there could be no such promise aslhe plaintiffs rely on ; or if issue be taken on the promise, and no promise within six years previous to the time when the writ issued, be proved, in that case also the defendant would prevail.

Had the rejoinder taken issue on the time of issuing the writ, and the promise within six years previous to that, as stated in the replication, it would have been double, for attempting to put two points in issue. The objection to it is not strictly of this character; for it will be seen, that the first part of the rejoinder does not answer the allegation that the writ was issued on a certain day; but takes issue on an immaterial averment in the replication, being only matter of inducement; to wit, that the plaintiffs did not sue out the writ within six years after the cause of action accrued; thus attempting to answer a material.allegation in the replication, by stating a fact altogether im> material. The rejoinder, then, in answering this part of the replication, is bad in substance. It is no answer. Ho issue is formed. The rejoinder ought not, therefore, as to this fact, to conclude to the country. We have already seen, if the rejoinder had answered this part of the replication, it would have been double, and therefore bad. Perhaps it may be considered double in attempting to answer both facts, although in so doing, the defendant’s pleading is defective. Whether viewed in that light or not, the plaintiffs had a right to object, that, to a material fact alleged by them, the defendant had put in an immaterial answer. They have done so by demurring; and as *the rejoinder is bad in part, it is insufficient for the whole. It is also inconsistent, by first denying the issuing of the writ within 6 years after the cause of action accrued, and then by taking issue on the promise within 6 years before the writ issued.

The plaintiffs are entitled to judgment on the demurrer, with leave to the defendant to amend.

Judgment for the plaintiffs.