Snyder v. White

Welles, Justice. The motion to strike out the- amended an-, swer must be granted. I agree with the plaintiff’s counsel, that it is identical, in legal; effect, with the original answer. The. issue upon the question of the transfer to and ownership by the plaintiff of the notes upon which the action is brought, was well and sufficiently formed by the first answer. In, the case of the [324] Genesee Mutual Insurance Co. agt. Moynihen (5 How. Pr. R. 321), I held that an answer to a material fact stated in the complaint, denying sufficient knowledge.or information thereof to form a belief, made a good issue, upon which the plaintiff held the affirmative, and which it was incumbent upon him to prove. Subsequent reflection has confirmed me in the correctness of that decision. This form of an answer is given by section 149 of the Code, and is a mode of denial, where the party is ignorant of the fact alleged, and can not safely deny the allegation, and is not bound to admit it, either in terms, or by omitting to answer. It is peculiarly proper, under such circumstances, where the pleading, as in the present case, is required to be verified. The Code,, however, makes no 'distinction in this respect, whether it is, or is not verified. If, then, an issue is formed by such a denial, it only remains to be determined by the proof, whether the fact thus put in issue, is or is not true; and there can be no doubt, I think, but that the party thus pleading, would have all the benefit upon the trial, and the same right to introduce evidence, that he would have in case the fact had been directly and positively denied. Otherwise, it seems to me, there would' be no úse or meaning in the section giving this form of denial. The original answer in this case, put directly in issue the facts of the transfer of the notes to the plaintiff, and the ownership of them by him. The amended answer, in so far as it differs from it in language and form, does no more; unless it is in the allegation that the defendant is one of the creditors of D. C. Lusk & Co., and that I regard as totally immaterial. Upon the facts set up in the alleged new matter of the amended answer, it can not be denied that the defendant is liable to pay the whole amount of the notes, upon the assumption that he is a creditor of D. C.'Lusk & Co. He clearly could not, in an action by the payees, set off, or recoup, any claim he has against them, even if he had, in his answer, claimed such set off, or right to recoup, which he has not done. According to the case made by the answer, the defendant is bound to pay the notes;' after paying them, he might come in for a dividend of the trust fund. Admitting the payees have transferred the notes, either with or without consideration, so as to have lost their claim upon their [325] proceeds, or have received the full amount on a sale and transfer of them, the most that can be said is, that they are liable to account for the amount of them to the cestui que trust. That would, of course, be the extent of them liability in relation to the notes, in case the defendant had paid them to the payees. It seems clear, therefore, that the allegation, that the defendant is one of the creditors of D. Lusk & Co. does not strengthen the answer, or vary its legal effect as a defence in this action; and the sum and substance of that part of the amended answer, is that the plaintiff has not sufficient title to the notes to enable him to sustain the action upon them. As before shown, a good and perfect issue was formed upon that question by the original answer. As the foregoing views dispose of the motion, it is not necessary to consider the question of the regularity of the defendant in amending his answer after the examination of the plaintiff before the county judge. If it were necessary, I should have no hesitation in saying that the defendant had no right to amend of course, under § 172 of the Code. Issue had been joined, the action noticed for trial, and the taking of proofs commenced under §391. He could only amend, after that, by leave of the court. The object and meaning of that section was to enable the party to examine his adversary as a witness, for the purpose of using the evidence upon the trial of the issue; and it does not lie with the defendant, now to allege that he procured the examination to be had for any other purpose. Under the liberal powers lodged in the court, in relation to amendments, the defendant would probably be allowed to amend his answer in this case, on application to the court, and upon terms, provided such amendment was shown to be necessary. I do not regard the decision of the circuit court, in striking the cause from the calendar at the Wayne circuit, as at all in the way of the present application. The decision of a motion is never regarded in the light of res adjudicata, although, as a matter of orderly practice, the court will not usually allow a motion, once made and decided, to be renewed on the same facts, nor upon additional facts, without leave first obtained. But this is not that case. Various good reasons might have existed for striking the case from the calendar, which should have no [326] influence upon this motion; and this court can not now listen to representations of counsel, as to the reasons which, in fact, governed the circuit court in making its decision. It is sufficient that the motion was entirely different in its nature and object, from the present one, and the object now sought by the plaintiff could not regularly have been attained on the defendant’s motion to strike from the calendar. The motion to strike out the amended answer is granted, with ten dollars costs.