De Forest v. Andrews

Beekman, J. 1. There is no claim, nor does the answer show, that the bond upon which suit has been brought was not enforceable against the defendant in the hands of the plaintiff’s assignors. That being the case, and the plaintiff having succeeded to all of their rights under the assignment, I fail to perceive how the matters which are set forth in the second defense can be a bar to the action. The demurrer to this defense is sustained. 2. The third defense is also insufficient. Although the defendant avers, in terms, that the plaintiff took the assignment of the bond in suit with the intent and purpose of bringing an. action . thereon against the defendant, the facts which he pleads in support of this utterly fail to sustain his conclusion. It has been held that the object of the statute (§ 73, Code Civ. Pro.) was to prevent attorneys from buying claims for the purpose of obtaining costs by the prosecution thereof, and that to constitute the offense the purchase must be for the very purpose of bringing such suit and for none other. Baldwin v. Latson, 2 Barb. Ch. 306; Moses v. McDivitt, 88 N. Y. 62. No such, purpose is disclosed upon the face of the pleading. 3. The fourth defense is also bad. A mere verdict in an action between the same parties, concerning the same transactions, no judgment having been rendered thereon, is not sufficient to support a plea of res adjudicata.' Bigelow on Estoppel, 51. 4. The fifth defense is by way of counterclaim, and sets up a cause of action for conversion. As the, plaintiff sues on contract, such a counterclaim cannot be interposed unless it arises out of the contract or transaction set'forth in the. complaint as. the foundation of the plaintiff’s claim, ór connected with the subject of the action. § 501, Code Civ. Pro, The transaction upon [148] which the plaintiff’s demand is based wasj the loan of money by plaintiff’s assignors, for which the bond-in suit was given. The matters alleged in the counterclaim are not in any proper sense connected with the subject of the action, hut constitute a different transaction to which the plaintiff’s assignors were strangers, and against whom no such claim could have beeh asserted. The plaintiff, as their assignee, stands in their shoes. If it be claimed that the facts alleged are, also, sufficient ¡to support a ■ cause of action on contract, the answer is that the j defendant has framed his plea on the theory of a tort, and he should be held to the particular form in which he has moulded his claim and characterized it. Davis v. Aikin, 85 Hun, 554. If, however, it may be considered that a causé of action on contrast has been stated, then the defense is open to the further objection, taken to it by the demurrer,, that it states a cause of action against a copartnership of which the plaintiff was a member, and' is, therefore, not enforceable here, the plaintiff’s copartners not being parties to the action. The demurrer to this defense must, therefore, be sustained. 5. The sixth defense and counterclaim, is open to the shine objections, and in addition I do not thinkj that the facts therein-stated are sufficient to. constitute á cause of: action. 6, The seventh and last defense and counterclaim is challenged by the demurrer on the ground that it sthtes a cause of action against a copartnership of which the plaintiff was a member, and cannot, therefore, be set up against him, his copartners not being parties to the record. The objection is well taken. I do’ not think that the averments in the so-called first defense are sufficient to put in issue, any of the material allegations contained in the complaint. Thé defendant does not deny the assignment, and his characterization of it is- insufficient to impeach plaintiff’s ownership and right to prosechte the claim. The plaintiff alleges that he has received a payment on account'-of the bond; that no other payments have been made thereon, and “ that ' there, is now due, owing and unpaid thereon from this defendant to the plaintiff the sum-of $i4,432.96,withj interest.from the said 17th day of December, 1894.” The defendant denies only “ that .there is now due or owing upon said bond and mortgage from this defendant to the said plaintiff the sum of fourteen thousand four hundred and thirty-two and 96/100 dollars ($14,432.96) or any sum whatever.” -But having admitted ¡the statement that the [149] amount claimed is unpaid, he concedes the only material portion of plaintiffs averment of the breach. It follows that the demurrer must be sustained, and judgment ordered thereon for the plaintiff for the relief demanded in the complaint, with costs, bnt with the usual leave to the defendant to amend on payment of costs. Ordered accordingly.