McIntire v. Wiegand

Per Curiam. The first and fourth paragraphs of the answer, interpreted together, must be taken as an admission that the defendants executed the undertaking sued upon, with the qualification that Wiegand was induced to sign it through the fraud of Pauline Wilkins, the plaintiff in the action therein referred to. These paragraphs can be construed in no other way. While inconsistent defenses are allowed to be pleaded, courts have never gone to the extent of holding that a defendant may plead—First, that he never executed the instrument sued upon; second, that he did execute it, but by means of fraud. No one could safely swear to such a plea, and no court could sanction a practice which encourages parties to take such a risk. We therefore regard the denial in the first paragraph of the answer as controlled by the admission in the fourth paragraph thereof.. It would certainly be so regarded at the trial. The fourth paragraph fails to set forth any legal defense. No fraud is attributed to the plaintiff herein, and he is not chargeable with the acts of others not in privity with him. Kelly v. Christal, 16 Hun, 242; Coleman v. Bean, 1 Abb. Dec. 394; Onderdonk v. Voorhis, 36 N. Y. 358; George v. Bischoff, 68 Ill. 236; Wayman v. Taylor, 1 Dana, 527; Harrison v. Wilkin, 69 N. Y. 412. Whether the undertaking was acknowledged or jurat sworn to is of no consequence in this action, as the omission of both would have constituted but a mere irregularity in the original action that might have been waived by the parties thereto. The -fifth paragraph pleads no defense. Whether the judgment recovered was the result of a .trial, default, or amicable arrangement is of no consequence. The judgment fixed the rights of the parties, and, if there was any collusion, the sureties should have applied for relief in the original action. The arbitrary use by the defendant of the term “amicable,” in reference to the judgment, does not detract from its force, or impair its effect. There is no merit in the appeal, and the order appealed from mxist be affirmed, with costs.