Van Valen v. Lapham

5 Duer 689 | The Superior Court of New York City | 1856

By the. Court. Bosworth, J.

The order appealed from is not erroneous.. A defendant must state, in his answer, the facts constituting his counter-claim, so that the court can determine, from the facts stated, whether one exists. If the answer is so amended as to aver that the note was transferred to the defendant before this action was commenced, no question can arise on the pleadings. If' the actual truth requires an averment, that it was transferred after suit brought, then, after the answer has been amended so as to thus allege, the question can be determined by demurrer, or motion for judgment on account of the frivolousness of the answer, whether a defendant can defeat a recovery, and subject a plaintiff to the costs of the action, by purchasing a demand against him after the defendant has been sued, and setting it up .as a counter-claim. Either party has a right to be apprised, by a pleading, of the precise facts on which his adversary founds bis cause of action, and to have them so fully pleaded that there may be no uncertainty, whether the merits are to involve a disputed question of fact, or to depend solely on a question of law. By requiring such certainty, the issues to be tried are diminished in number, and the end of a litigation may often be reached much sooner, and at much less expense to both parties.

Order affirmed.

Note.—The defendant subsequently amended his answer, and stated the transfer of the note to him to have been subsequent to the commencement of bills action. The plaintiff did not reply to the answer, but noticed the action for trial. It was tried before Bosworth, J., without a jury, who gave judgment for the plaintiff, and rejected the counter-claim, because the note held by the defendant was not transferred to him until this action was commenced. The reasons for his judgment are reported in 13th How. Pr. B. 240.