Houghtaling v. Lloyd — 39 N.Y. St. Rep. 580

Majority

p. 580

Harmon Houghtaling, Resp’t, v. Harriet L. Lloyd, App’lt

(Supreme Court, General Term, Third Department,

Filed July 11, 1891.)

Headnote

Admissions in answers—Amendment—Effect of.

Where, in the original answer, an alleged fact is admitted, and an amended answer is afterwards served which contains no such admission, the fact will be taken as denied by the amended answer.

Appeal by defendant from a judgment of the Schoharie county court affirming judgment of justice’s court entered on verdict of "a jury.

L. G. Van Tuyl, for app’lt; J. H. Mattice (Isban Hess, of counsel), for resp’t.

—The learned county judge in his mem. states that he was at first inclined to reverse this judgment on the ground that there was no proof of the agency of Lewis Lloyd for his wife. But he says the agency was alleged in the answer, 5th defense.

The learned county judge therefore referred to the original answer. That was superseded by the amended answer; and the amended answer contains no- such admission.

Taking the pleadings then as they were at the time of the trial, the agency was not admitted, but was denied. Therefore it was necessary to prove it There is no proof. The plaintiff says he had dealings with Lewis L. Lloyd as the agent of his wife. But this evidence was objected to as no proof of agency and as improper. And nothing is stated by the plaintiff, the only witness, showing that Mr. Lloyd acted or was authorized to act for his-wife.

There is no evidence whatever showing that the defendant was liable.

We need not inquire whether if the original answer had been

p. 581

offered in evidence it would have been competent proof of agency, because it was not so used. The parties on this appeal must rest on the pleadings as they stood at the time of the trial and on the evidence then given.

This is not a case in which we can be satisfied that the judgment is right. Code, § 3063. There is nothing shown which affects the defendant.

Judgment of county court and justice of peace reversed, with costs.

Landon and Mayham, JJ., concur.