Van Valen v. Lapham — 12 N.Y. Super. Ct. 689

Majority

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Van Valen v. Lapham.

Headnote

When a defendant sets up, as a counter-claim, a note made by the plaintiff, payable to a third person, and endorsed to the defendant, the answer must aver such endorsement to have been made before the action was commenced.

The fact that the answer states such note to be a “ counter-claim and cause of action existing against the plaintiffj at and before the commencement of the action,” is not enough to show that it previously belonged to the defendant. The plaintiff has a right to require the answer to be so full and precise, that he may know whether the defence is to involve a disputed question of fact, or to depend solely on a question of law.

Before all the Justices,

October 18, 1856.

This action comes before the court on an appeal from an order directing the defendant to amend the part of his answer which

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sets up a counter-claim, so as to make it more definite and certain, by stating, when the note made by the plaintiff, and which the defendant alleges has been endorsed to him, was transferred. The note, by its terms, is payable to a third person, and was due at the time this action was commenced. The answer, although it states the note has been endorsed to the defendant, and that he owns it, does not state when it was endorsed, nor that it was, before the suit was brought.

The defendant insists that the order'is wrong, on two grounds. 1st. If it is necessary that a note made by plaintiff, and purchased by defendant, should have belonged to defendant when this action was commenced, in order to constitute it a counter-claim, that fact is sufficiently alleged, as the answer states it to be a “counter-claim and cause of action existing against the plaintiff at and before the commencement of this action.” 2d. That it is not essential that the defendant owned the note at the time this action was commenced, that it is enough that it existed and was then due, and that it was transferred to the defendant before the time to answer expired, and belonged to him when the answer was put in. .

Seeley & Cheeney, for plaintiff.

H. S. Lincoln, for defendant.

The order appealed from is not erroneous.. A defendant must state, in his answer, the facts constituting his counter-claim, so that the court can determine, from the facts stated, whether one exists. If the answer is so amended as to aver that the note was transferred to the defendant before this action was commenced, no question can arise on the pleadings. If' the actual truth requires an averment, that it was transferred after suit brought, then, after the answer has been amended so as to thus allege, the question can be determined by demurrer, or motion for judgment on account of the frivolousness of the answer, whether a defendant can defeat a recovery, and subject a plaintiff to the costs of the action, by purchasing a demand against him after the defendant has been sued, and setting it up .as a counter-claim. Either party has a right to be apprised, by a pleading, of the precise facts on which his adversary founds

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bis cause of action, and to have them so fully pleaded that there may be no uncertainty, whether the merits are to involve a disputed question of fact, or to depend solely on a question of law. By requiring such certainty, the issues to be tried are diminished in number, and the end of a litigation may often be reached much sooner, and at much less expense to both parties.

Order affirmed.

Note.—The defendant subsequently amended his answer, and stated the transfer of the note to him to have been subsequent to the commencement of bills action. The plaintiff did not reply to the answer, but noticed the action for trial. It was tried before Bosworth, J., without a jury, who gave judgment for the plaintiff, and rejected the counter-claim, because the note held by the defendant was not transferred to him until this action was commenced. The reasons for his judgment are reported in 13th How. Pr.