Johnson Bros. & Co. v. Reilly

Westbrook, J. — The fifth and sixth claims, with the-schedule attached, should be stricken out because they con [356] tain, as they stand, neither ip themselves or in any facts averred in the first defense, any defense. It is nowhere averred in that part of the answer that the executions in favor of Claflin & Co. were ever levied upon the property of the defendants during their life (Smith agt. Smith, 60 N. Y., 161), or that they could have been, or that the property was exhausted by a sale thereof under such executions) or that the property was not ample to satisfy their execution as well as that of plaintiffs. It matters not how many other executions the defendants may have had, unless there is some averment showing that they affected the plaintiff’s execution. Motion granted, with ten dollars costs.