East River Electric Light Co. v. Clark — 45 N.Y. St. Rep. 635

Majority

p. 635

The East River Electric Light Company, Resp’t, v. Francis A. Clark, App’lt.

(New York Common Pleas, General Term,

Filed April 4, 1892.)

Headnote

1. Pleading—Corporations.

An allegation in an answer that defendant “has no knowledge or information sufficient to form a belief as to plaintiff being a domestic corporation,” raises no issue on that point and dispenses with proof of plaintiff's incorporation.

8. Same—Denial.

A statement in an answer of a condition of fact inconsistent with the averments of the complaint, is not equivalent to a general denial, so as to defeat an admission of the allegations of the complaint.

8. Same—Contract.

In an action upon contract the answer contained no denial, but set up a different contract under which a less sum was due, for which judgment was offered. Held, that the cause of action sued upon was confessed by non-denial, and was not open to traverse or contrary proof on the trial.

4. Same.

In such case the mere allegation in the answer that defendant was indebted in a certain sum and no more on the contract which he set up, is no qualitication of his admission that he was owing a larger sum on the contract alleged in the complaint.

Appeal from judgment of the general term of the city court, affirming a judgment for plaintiff on the pleadings.

Michael J. Kelly, for resp’t; Samuel L6beniha.ll, for app’lt.

The appeal being from the judgment only, we have no jurisdiction to review the facts. But, as judgment was directed on the pleadings, there is, in truth, no question of fact in controversy; and the only point for adjudication is, whether the answer raised any issue for trial.

1. The complaint contains the averment that the plaintiff was and is “ a domestic corporation,” etc. The answer alleges merely that the defendant “ has no knowledge or information sufficient to

p. 636

form a belief as to the plaintiff being a domestic corporation.” As a general rule of pleading under the Code, it is a sufficient denial to aver that the defendant “ has no knowledge or information sufficient to form a belief ” as to the fact traversed; but the rule is qualified by § 1776, which provides that “in an action brought by a corporation, the plaintiff need not prove, upon the trial, the existence of the corporation, unless the answer is verified and contains an affirmative allegation that the plaintiff is not a corporation.” Plainly, the answer here dispensed with proof of Slaintiff’s incorporation. Platt, etc., Refining Co. v. Hepworth, 13 Civ. Pro., 122.

2. 'The complaint alleged a specific agreement, and that under it the sum became due for which judgment is recovered. The answer does not deny that agreement, but sets up another and different agreement, under which a less sum is due, and, for that sum makes an offer of judgment.. By the Code (§ 500) an answer must consist of a general or specific denial of each material allegation of the complaint; or a statement of new matter constituting a defense or counterclaim. A statement in an answer of a condition of fact inconsistent with the averments of the complaint is not equivalent to a general denial, so as to defeat an admission of the allegations in the complaint. Wood v. Whiting, 21 Barb., 190 ; West v. The Bank, 44 id., 176; Powers v. R. R. Co., 3 Hun, 285 , 286; Swinburne v. Stockwell, 58 How., 312 ; Marston v. Swett, 66 N. Y, 206 , 210; Fleischmann v. Stern, 90 N. Y., 110 .

The cause of action presented in the complaint being confessed by non-denial, was not open to traverse or contrary proof on the trial. Paige v. Willet, 38 N. Y., 31 .

The mere allegation in the answer that defendant was indebted a hundred dollars “ and no more” by virtue of the contract which he set up, is no qualification of his admission that he was owing four hundred dollars under the contract on which the action proceeded.

Defendant’s admission of plaintiff’s cause of action for $400, and his own voluntary confession of indebtedness for $100 on another and different contract, would seem to entitle plaintiff to judgment for $500, instead of operating in any way to defeat or reduce the judgment recovered.

The case was properly disposed of below, and the judgment is affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.