Arnold v. Dimon — 6 N.Y. Super. Ct. 680

Majority

p. 680

Arnold v. Dimon and another.

Headnote

A defendant -will not be permitted to set up two defences which are inconsistent with each other, and one of which, from its nature, must be within his personal knowledge.

Thus, a carrier by water will not be permitted to answer, 1. That he was not the owner of the vessel; and, 2. That the property shipped was delivered to the plaintiff.

November 29, 1851.

Motion to strike out part of an answer. The complaint alleged that certain merchandise was shipped at Charleston, on board a ship of the defendants, to be delivered to the plaintiff at New York, and that it had never been delivered. The answer set up, 1. That the defendants were not the owners of the ship. 2. That the merchandise was brought to New York and delivered to the plaintiff.

T. J. Glover, for the plaintiff.

G. F. Betts, for the defendants.

(with the concurrence of

The answer sets up two distinct defences. The first, if true., puts an end to the claim, and the fact averred is .within the defendants’ personal knowledge. We think the rule must be, that where facts are alleged in an answer, which from their nature must be within the personal knowledge of the defendant, and which, if true, are a complete answer to the claim, he shall not set up in addition another state of facts not consistent with the previous defence. Here the defendants must rely upon one or the other of these defences, and they may elect which they will retain. They cannot stand upon both. If they were not owners of the ship, it is no matter to them whether the goods were delivered or not. If they were the owners, they ought not to deny it, and if the goods were

Concurrence

p. 681

delivered, or there was some. good cause for not performing their contract, let them state that defence and rely upon it.

Motion granted.