McIntire v. Wiegand — 30 N.Y. St. Rep. 386

Majority

p. 386

Thomas McIntire, Resp’t, v. William Wiegand, Impl’d, App’lt.

(City Court of New York,

General Term,

Filed April 2, 1890.)

Headnote

1. Pleading—Inconsistent defenses.

In an action upon an undertaking, a defendant cannot be allowed to unite the defenses that he never executed the instrument, and that he did execute it, but by means of fraud.

2. Undertaking—Defenses.

In an action on an undertaking given to procure an order of arrest, an allegation that it was signed under a misrepresentation as to its contents, does not constitute a defense, as the plaintiff is not chargeable with the acts of others not in privity with him.

3. Same.

An omission to acknowledge the undertaking or swear to the, jurat, is a mere irregularity which may be waived.

4. Same.

An allegation that the judgment recovered by the plaintiff in the action in which he was arrested was brought about by amicable means, pleads no defense.

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.

p. 387

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, under a misrepresentation by Pauline Wilkins of its contents; that the affidavit appended to it was not sworn to and the undertaking never acknowledged.

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 & Leo, for app’lt; A. H. Berrido, for resp’t.

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. Christal, 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 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.

McAdam, Gh. J., Ehrlich and McGrows", JJ., concur.