10 Daly 466 | New York Court of Common Pleas | 1882
[After stating the facts as above.]—It appears conclusively from the papers in this case, as has been above stated, that the defendant was always aware of the defense which he now desires to set up against the check in question.
I know of no rule or practice which has allowed a defendant knowingly to withhold defenses, depending upon the establishment of others, who has been allowed subsequently to set them up. Such speculations are not to be fostered by the courts. A defendant is bound to set up his Avliole case as he knows it at the time of putting in his answer at his peril, and where a defendant knowingly withholds a defense from a pleading, after he has been beaten in respect to those which have been set up, he has no claim to be allowed to place upon the record that which he has purposely withheld, until he has been forced by the course of the litigation to place upon the record a defense, which at the time of putting in the original pleading he shrank from exposing.
The defendant in this action, if he could get clear of paying the check in question, Avas unwilling to plead the fact that the money was lost at gaming. Perhaps some sentiment of honor may have been struggling through his brain, but the prospect of having to pay the money that he had lost, which by the ruling of the court had become a certainty, seems to have overcome this reluctance, and he noxv desires to place upon the record that defense Avhich he was unwilling to set up at the time that he first ansAvered.
I know of no rule which Avould authorize the court to permit a defense to be put in under such circumstances.
Beach, J., concurred..
Order reversed, with costs.