Van Demark v. Van Demark

Welles, Justice. There is no ground for this motion. The plaintiff alleges, in his complaint, that he has paid both the motes, and claims contribution from the estate of one of his co-sureties. After stating the giving of the notes by the principal debtor, their execution by the plaintiff, the testator and Charles Wan Demark, as co-sureties, &c., and the payment of them by the plaintiff, he had stated facts entitling him to contribution from his co-sureties. The law settles the rest, and decides that he is entitled to recover of the defendants as the representatives of -one of his co-sureties, one-third of what he had paid upon the notes, with interest. It was unnecessary for the plaintiff to have gone further in his statement of facts. All else was matter of defence. He was not bound to say whether anything had been repaid to him, nor has he done so. He says, none of the money has been paid him by the testator or the defendants. He also denies that the whole, or the portion thereof which he is entitled to collect of his co-sureties, has been paid to him by any person, and says that part thereof is still due and payable from the defendants. The defendants, in their notice of motion, and on the arguinent, ask what part has been paid him, and what part is d.ue [374] from the defendants, and desire the answer to these questions to appear in the complaint. The defendants have no interest in the question, whether Charles Van Demark has contributed to the plaintiff his share of the money paid by the latter to discharge the notes. It is enough, for this case,, that the share due from the estate of the testator is not paid. The complaint states, that neither the testator nor the defendants have repaid him anything. It nowhere admits that their share, or any part of it, has been paid by any one. If anything has been paid on that account by any one other than the testator, or the defendants, it is,, as before remarked, matter of defence, and need not be stated in the complaint. For these reasons, the motion is denied, with $7 costs.