Wolcott v. Ensign

Downey, C. J. This was an action by the appellee against the appellant, predicated upon a judgment in favor [71] of the plaintiff against the defendant, rendered in the Supreme Court of Orleans county, in the State of New York, on the 18th day of April, I860. The defendant answered in seven paragraphs. Demurrers were sustained to the third, fourth, fifth and seventh, and part of the sixth was struck out on motion of the plaintiff. There was a reply in denial of the second and sixth paragraphs. The issues of fact were tried by the court, without a jury, and there was a finding for the plaintiff on which final judgment was rendered. The errors assigned and relied upon are the striking out of part of the sixth paragraph of the answer, and sustaining the demurrer to the seventh. The defense relied upon was, that the defendant had, before the rendition of the judgment, placed in.the hands of the plaintiff certain collaterals, the proceeds of which were to be credited as payment on the debt for which the judgment was rendered; and that the plaintiff had, after the rendition of the judgment, realized the amount of the collaterals, which should now be applied as payment on the debt. The second paragraph of the answer was a general answer of payment, under which, we think, proof might have been made that the plaintiff had received the amount of the col-laterals placed in his hands, or that he had become chargeable therewith, as payment on the judgment, to that extent, and, for this reason, the action of the court in striking out part of the sixth paragraph of the answer, and sustaining the demurrer to the seventh, could not have harmed the defendant. Reeves v. Plough, 46 Ind. 350. The judgment is affirmed, with five per cent, damages and costs. Petition for a rehearing overruled.