Barton v. Sackett
New York Supreme Court
The complaint alleged that the Plaintiff held a promissory note against Da H. Sherman and Edward "P. Barton—that Sherman assigned all his property to the Defendants, who, in consideration thereof, agreed with Sherman, by instrument in writing, to assume the payment of said note.
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The complaint alleged that the Plaintiff held a promissory note against Da H. Sherman and Edward "P. Barton—that Sherman assigned all his property to the Defendants, who, in consideration thereof, agreed with Sherman, by instrument in writing, to assume the payment of said note. The Defendants, Sacket and Gurnsey, without denying the execution of the instrument, both deny that they intended by the instrument to render themselves liable for any debts which they were not liable for previously, and state with particularity what was their meaning and intention. ■ The Plaintiff replies by setting…
1Opinion of the Court
Barculo, Justice.
The 144th section of the code of procedure provides that “every material allegation of new matter in the answer, not specifically controverted by the reply, as prescribed in section 131, shall, for the purposes of the action, be taken as true.” The statute must be confined *359•to allegations offact and cannot refer to an averment of the legal construction or effect of written instruments; much less can it be applied ■to the intention or meaning of the parties, when they execute a written contract. To adopt the construction claimed by the Defendant’s counsel, would be to subvert,…
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