Jordan v. . National Shoe and Leather Bank
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the first judicial department, reversing a judgment in favor of defendant, entered upon a verdict.
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Appeal from order of the General Term of the Supreme Court, in the first judicial department, reversing a judgment in favor of defendant, entered upon a verdict. (Reported below, 12 Hun, 512.) This action was brought by plaintiff as administratrix of Cornelius Poillon, deceased, to recover a balance of his deposit accomit with defendant, standing to his credit at the time of his death, which occurred October 11, 1876. The answer contained the following : “ And for a- further, separate and distinct defense these defendants" allege, that the said Cornelius Poillon, at the city of New York, on…
1Opinion of the CourtFolger, J.
The point is not well taken, that the answer sets up a counter-claim, and that as there is no reply thereto, the counter-claim is admitted.
In the first place, that position was not taken at the circuit. The trial proceeded as if every matter contested by the parties was fairly and fully at issue. Had the point now taken been raised there, non constat but that an amendment of the pleadings, if the same was necessary, would have been asked for and made.
Again : If it be granted that the allegation of new matter, in this respect, in the answer, be taken as admitted, what is that new matter ? ■ It…
Also in this document: Concurrence.
2Cases cited9 opinions
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- Dillon v. BarnardSupreme Court of the United States · 1875
- Palmer v. Conly & JohnsonNew York Supreme Court · 1847
- Beckwith v. . the Union Bank of New-YorkNew York Court of Appeals · 1853
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