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McIntire v. Wiegand

24 Abb. N. Cas. 312 Court N. Y. City Court, English

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p. 312
McINTIRE v. WIEGAND.
N. Y. City Court,
General Term;
April, 1890.

Headnote

1. Pleading; inconsistent defenses.] An answer in an action upon an ' undertaking which denies any information or belief as to whether defendant executed the undertaking, and then alleges that it was signed by defendant ignorantly, under a misapprehension of its contents, will be construed as admitting the execution of the undertaking with the qualification contained in the later allegation. The denial must be deemed to be controlled by the later admission.[1]
2. Undertaking; defenses.] It is no defense to a surety in an undertaking, when sued upon ijt, that he was induced to sign it by misrepresentations of his principal as to its contents ;• nor that it was not acknowledged and the appended affidavit not sworn to; nor that the judgment in the action in which the undertaking was given was brought about by an amicable arrangement. In the last case, the remedy of the surety against collusion is by application in the original action.
Appeal by defendant from order striking out his answer.
Pauline Wilkins commenced an action in this court against Thomas Mclntire (plaintiff herein), in which action she obtained an order of arrest against Mclntire, and the defendants (herein) executed the undertaking required to obtain the order. Mclntire was arrested, and thereafter such proceedings were had in the action that Mclntire recovered judgment against the plaintiff therein for $46.98 costs. The present action is on the undertaking to recover $250 damages. The defendant, Wiegand ' (one of the sureties), defends. First. By denying any knowledge or information sufficient to form a belief whether he or the other surety executed the undertaking. Fourth. By alleging that the undertaking was signed by him ignorantly,
p. 313
under a misrepresentation by Pauline Wilkins of its contents ; that the affidavit appended to it was not sworn to and the undertaking never ackowledged. Fifth. By alleging that the judgment recovered was brought about by an amicable arrangement. These three paragraphs present the questions requiring consideration. A motion was made to strike out, and from an order granting the application the appeal was taken.
Lexow dk Leo, for appellant.
A. H. Berrick, for respondent.

By the Couet

after stating facts as above).—The first and fourth paragraphs of the answer interpreted together must be taken as an admission that the defendants executed the undertaking sued upon, with the qualification that Wiegand was induced to sign it through the fraud of Pauline Wilkins, the plaintiff in the action therein referred to. These paragraphs can be construed in no other way. While inconsistent defenses are allowed to be pleaded, courts have never gone to the extent of holding that a defendant may plead : First. That he never executed the instrument sued upon. Second. That he did execute it, but by means of fraud. No one could safely swear to such a plea, and no ■court could sanction a practice which encourages parties to take such a risk. We therefore regard the denial in the first paragraph of the answer as controlled by the admission in the fourth paragraph thereof. It would certainly be so .regarded at the trial. The fourth paragraph fails to set forth any legal defense. No fraud is attributed to the plaintiff herein, and he is not chargeable with the acts of others not in privity with him (Kelly v. Christol, 16 Hun, 242 ; Coleman v. Bean, 1 Abb. Ct. of App. Dec. 394; Onderdonk v. Voorhis, 36 N. Y. 358 ; George v. Bischoff, 68 Ill. 236 ; Wayman v. Taylor, 1 Dana, 527 ; Harrison v. Wilkin, 69 N. Y. 412 ). Whether the undertaking was

p. 314
acknowledged or jurat sworn to is of no consequence in this-action, as the omission of both would have constituted but a mere irregularity in the original action that might have-been waived by the parties thereto. The fifth paragraph pleads no defense. Whether the judgment recovered was-the result of a trial, default or amicable arrangement is of no consequence. The judgment fixed the rights of the-parties, and if there was any collusion the sureties should have applied for relief in the original action. The arbitrary use by the defendant of the term “ amicable” in reference-to the judgment does not detract from its force or impair its effect. There is no merit in the appeal, and the order appealed from must be affirmed with costs.

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