Majority
p. 379HAINES v. HERRICK.[1] N.Y. Supreme Court, Second District ; Special Term and Chambers, June, 1881.
Headnote
Pleading.—General Denial.—Motion to Make Answer more Definite and Certain.A defendant may admit one or more special allegations of the complaint and deny the remainder by a general denial, when the allega
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tionS of the complaint are so specified that there can be no mistake in ascertaining what is put in issue or in punishing the defendant if the verification is false.
McEnroe v. Decker, 58 How. Pr. 251 ,—distinguished.
Motion to make answer more definite and certain.
Emos Haines, George R. Haines and Alfred Haines sued William C. Herrick, Pierre Van Alstyne and Bernard N. Smith for damage, for having, by fraud and conspiracy, prevented them, the plaintiffs, from collecting claims held by them against the" defendants,Tan Alstyne and Smith.
The material portions of the complaint were as follows : Paragraph !, set out the partnership of the plaintiffs, and paragraph II. the partnership of defendants, Van Alstyne and Smith. It then alleged :
“III. That on or about the first day of November, 1877, the defendants, William C. Herrick,. Pierre Van Alstyne and Bernard N. Smith entered into an unlawful confederation and conspiracy with intent and design to cheat and defraud the plaintiffs and such other persons as the said Van Alstyne and Smith might induce to give them credit, and the.said defendant did, on or about said 1st day of November, 1877, and at the time hereafter mentioned, corruptly and unlawfully conspire and confederate together to cheat and defraud the plaintiffs.
“That at the time said defendants entered into such conspiracy and confederation the said Van Alstyne and Smith were carrying on an extensive business and had in their possession a large amount of property, and possessed and enjoyed an extended business credit. ^ That said Van Alst'yné and Smith were at that time indebted to the defendant, William C. Herrick, in the sum of about $21,000, and the said Herrick then held as security for the payment of said indebtedness the bond of said Van Alstyne and Smith and a mortgage on the said- premises, Nos. 547 to. 555. West 21st street,
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in the City of New York, which said mortgage was ample security for the payment of said indebtedness.
“IV. That in pursuance of the said unlawful conspiracy and confederation aforesaid the said Van Alstyne and Smith on or about the said 1st day of November, 1877, executed and delivered to the defendant, William C. Herrick, their certain promissory note, whereby they promised to pay three months after the date thereof to the order of said Herrick the sum of $10,000; that said note, as the plaintiffs are informed and believe, was wholly without consideiation, and was given for the sole purpose of creating a fictitious in-deb.tness in favor of the said Herrick with the fraudulent intent and design aforesaid ; that subsequently, and (fol. 8) in pursuance of - said unlawful conspiracy and confederation, and as a cover to conceal the same, the said Herrick, as the plaintiffs are informed and believe, indorsed and gave credit for the amount of said note on said bond and mortgage.
“That in pursuance of said corrupt and unlawful conspiracy and confederation the said William 0. Herrick on or about the 5th day of March, 1878, .coim menced an (fol. 9) action in this court, in the county .of Columbia, against the said Pierre Van Alstyne and Bernard N. Smith upon the said promissory note and two other notes, one for $716.84 and the other for $1,508.80. That the summons and complaint in said action were served by said William C. Herrick personally upon said Pierre Van Alstyne and Bernard N. Smith. That neither said Van Alstyne or said Smith ever appeared in said action (fol. 10), and no further steps were taken-by the plaintiffs in the prosecution thereof until the 30th day of December, 1879, when judgment was entered therein against the said Van Alstyne and Smith by default for the sum of $13,885,26.
“That on the 31st day of December, 1879, an execution upon said judgment was issued and delivered to
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the sheriff of the city and county of New York, who immediately levied thereunder upon all the property of the said Van Alstyne and Smith and said B. N. Smith & Co. and proceeded to sell and did sell the same to the said William C. Herrick for the sum of $6,625.
“V. That in pursuance of the said unlawful conspiracy and confederation said Van Alstyne and Smith did, on or about said 31st day of December, 1879, assign, transfer and set over unto the said William C. Herrick all the property which they then had, and the said B. N. Smith & Co. did likewise at or about the same time assign, transfer and set over unto the said William C. Herrick all the property belonging to said B. N. Smith & Co.
“That the value of the property thus assigned by said Van Alstyne & Smith and said B. N. Smith & Co. to said Herrick, and sold to him under execution, amounted to the sum of about $96,779.00; and the said Herrick, as the plaintiffs are informed and believe, realized therefrom, in cash or its equivalent, within a few weeks after such transfers and sale were made, the sum of about $51,461.00, and thereafter had and still retains, except so far as the same have been paid, uncollected accounts due said firms from various persons amounting to the sum of about $45,318.00.”
The complaint then alleged that the amount of Van Alstyne and Smith’s indebtedness to defendant Herrick did not exceed $28,000, and that before plaintiff’s proceedings they had enjoyed good credit and become indebted to plaintiff in various sums, which were specified, and that plaintiff had recovered judgments against them, and issued executions which were returned unsatisfied.
It also alleged that $250 were expended in the expenses of the actions and in supplementary proceedings.
It then proceeded as follows:
“That by means of the said corrupt and unlawful
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conspiracy and confederation the defendants have cheated and defrauded the plaintiffs out of the said several sums of money above mentioned, and by reason thereof the plaintiffs have sustained damages in the sum of one thousand and twenty 16-00 dollars besides interest,” &c.
“Wherefore,” &c.
The material portion of the answer was as follows:
“Admits the allegations contained in paragraphs I. and II. of said complaint; admits that on 1st November, 1877, the defendants Yan Alstyne & Smith were carrying on an extensive business and had in their possession a large amount of property ; admits and alleges that the said Yan Alstyne & Smith were at that time indebted to William C. Herrick to the extent of as much as $22,500, and that for $21,000 thereof the said Herrick then held the bond of said Yan Alstyne & Smith and their mortgage on a lease of the premises mentioned in the complaint; admits that said Yan Alstyne & Smith on November 1st, 1877, executed and delivered to said Herrick their promissory note whereby they promised to pay three months after date of same to said Herrick’s order $10,000; admits the allegation of folio 8 commencing with the words ‘ the said William C.,’ and ending with the words ‘levied thereunder,’ in folio 10; admits and alleges that by virtue of the executions mentioned in said folio 10, the Sheriff of New York city and county levied upon nearly all of the personal property of the said Yan Alstyne & Smith and sold the same under said execution and the prior executions, and at such sale the said Herrick purchased nearly if not quite all the property so sold; . . .
“Denies each and every allegation contained in the complaint in this action not hereinbefore specifically denied or expressly admitted.”
The plaintiff moved at chambers to compel the defendants to make their answers more definite and
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certain and to specify the portions of the complaint intended to be denied.
Quiver & Betts, for plaintiff and motion. i
Charles A. Murphy, for defendant Smith, and Andrews & Edwards, for defendant Herrick, opposed.
In McEnroe v. Decker, 58 How. Pr. 251 , it was held at special term that an answer denying “ each and every allegation of the complaint not hereinbefore specifically admitted or denied, or not herein-before specifically admitted or avoided,” did not contain a good denial.
This opinion states that a denial substantially in that form had been held bad by the general term of the first department.
It may well be that the decision in that case was based on the use of the term “avoided.” For what is sufficiently avoided is a matter of law, not of fact. In this respect the denial was certainly insufficient. If the decision is intended to hold that a defendant may not admit one or more specific allegations of the complaint and deny the remainder in a single comprehensive denial, I think it is opposed to the decisions of the .court of appeals. See Allis v. Leonard ( 46 N. Y. 688 ),[1] Youngs v. Reub (Id. 672).
Nor do I see any objection to this method of pleads ing. Why should a defendant, where th.e character of any of the parties such as their partnership incorporate or representative character, compels an allegation of that fact in the complaint and an admission thereof in the answer, follow verbatim the allegations of the complaint establishing a cause of .action, instead of comprehensively denying the same, .as he would be permitted to do if these formal allegations were absent?
It may be this form of denial may be observed so
* Reported in 22 Alb. L. J. 28.
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far as to make, the answer evasive. If so, the remedy is plain. In the case at bar, the answer admitted certain allegations of the complaint specified with considerable particularity, and denies the residue.
There can be no mistake in ascertaining what is put in issue by the answer or in punishing the defendant if the verification of the answer is willfully false..
Motion denied, $10 costs to abide event of action.