Schnitzer v. Fox

O’Dwyer, I. This is an appeal from a judgment entered upon •a verdict directed by the court in favor of the plaintiff. The action was brought to recover $250, on an undertaking on attachment, as damages sustained by reason of the issuance and levy of a warrant of attachment thereon issued. The answer pleaded substantially a general denial. The cause was placed on the calendar, and upon motion thereafter it was placed upon the calendar for the trial of short causes. The defendants made a motion to amend their answer, a few days before the trial, by pleading a judgment recovered in the City Court of the city of Hew York in favor of one of the defendants against the plaintiff’s assignor, and before the assignment to the plaintiff. This motion was denied, and from the order entered thereon, as well as from the judgment, this appeal is taken. The only question presented for review by this appeal, in behalf of the appellants, is the correctness of the order made at the Special Term denying the defendants’ motion for leave to serve an amended answer, it following, as of course, that if that order is correct the judgment must be affirmed, and if not; and a reversal thereof must be had, then the judgment must necessarily be reversed. The City Court of the city of Hew York is a court of special jurisdiction, and section 532 of the Code provides: “ In pleading a judgment, or other determination, of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction.” And unless, in pleading such a judgment, the facts conferring jurisdiction are stated or the allegation is contained that the judgment was duly given or made, the pleading is fatally defective. Tuttle v. Robinson, 91 Hun, 187; Hamerschlag v. Cathoscope Elec. Co., 16 App. Div. 185; 44 N. Y. Supp. 668. In the present case the proposed amended answer alleges that the judgment was recovered in the City Court of the city of Hew York. It shows that it was recovered in a court of special jurisdiction. There is no allegation showing, or alleging, [30] the facts conferring jurisdiction upon the City Court of the city of Hew York to give that judgment, nor is there any allegation contained in the proposed amended answer, to the effect that the said judgment was duly given or made. The proposed amendment, therefore, failed to state facts sufficient to constitute a counterclaim or a defense, and the denial of the motion for leave to serve the proposed pleading in that form was right. It follows that the judgment and order appealed from should he affirmed, with costs. Fitzsimons, Ch. J., concurs. Judgment and order affirmed, with costs.