Majority
p. 260Hester A. Tompkins, Resp’t, v. William H. Tompkins, App’lt. (Supreme Court, General Term,, Second Department, Filed May 14, 1894.)
Headnote
Pleadings— General denial — Proof.In an action to recover an alleged loan, the defendant may, under a general denial, show the agreement under which he claims to have received it.
Appeal from a judgment entered on a verdict in favor of plaintiff.
.. Francis Larkin, for app’lt; William P. Fiero, for resp’t.
The complaint in this action set forth as a cause of action a loan of a sum of money by the plaintiff to the defendants, and non-payment thereof after demand. The answer was a general denial of the complaint, except as to the allegation of demand and non-payment. Upon the trial, upon cross-examirv:tu;i
p. 261
of the plaintiff, and upon the direct examination of the defendants, questions were aslced for the purpose of showing that the money was given to the defendants under an agreement, by which they were to board and take care of the plaintiff and her sister, who were respectively the mother and aunt of the defendant William H. Tompkins. This evidence was excluded upon plaintiff’s objection, on the ground that it was inadmissible under the pleadings, and the exception to this ruling presents the question upon this appeal. Under a general denial the defendant may contradict any evidence given by the plaintiff in support of the cause of action alleged in the complaint. Milbauk v. Jones, 141 N. Y. 340 ; 57 St. Rep. 429 , and cases cited; Roemer v. Striker, 142 N. Y. 134 ; 58 St. Rep. 615 . He is not confined to a simple denial of the facts testified to on behalf of the plaintiff, but he may introduce .any evidence which tends to show the transactions between the parties to be different from what the plaintiff claims it to be. The plaintiff alleged and testified that the transaction with the defendants was a loan of money. Under a general denial, defendants were entitled to show the agreement under which they claimed to have received it. The cases cited by the respondent have no application. Bassett v. Lederer, 1 Hun, 274 , and McKyring v. Bull, 16 N. Y. 297 , were cases where defendants sought to prove payment under a general denial. This defense must always be pleaded. Lent v. N. Y. & Mass. Railroad Co., 130 N. Y. 504 -511; 42 St. Rep. 592 . Weaver v. Barden, 49 N. Y. 294 , was an action to compel the transfer of stock to the plaintiff. The court held that under a general denial defendant could not prove he was a bona fide purchaser of the stock, for the reason that that fact had no tendency, to contradict anything which plaintiff was bound to prove to sustain his case. These cases do not conflict with the rule here applied.
The judgment must be reversed and a new trial granted, with costs to abide the event.
Cases cited
- Milbank v. Jones 141 N. Y. 340 p. 261
- Roemer v. Striker 142 N. Y. 134 p. 261
- McKyring v. Bull 16 N. Y. 297 p. 261
- Lent v. New York & Massachusetts Railway Co. 130 N. Y. 504 p. 261