Van Valen v. Lapham
The Superior Court of New York City
This action comes before the court on an appeal from an order directing the defendant to amend the part of his answer which 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.
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This action comes before the court on an appeal from an order directing the defendant to amend the part of his answer which 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…
1Opinion of the CourtBy the. Court. Bosworth, J.
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…
2Cited by2 opinions
- John Church Co. v. ClarkeNew York Supreme Court · 1894
- John Church Co. v. ClarkeNew York Supreme Court · 1894