Sovereign Bank of Canada v. Stanley

HAND, District Judge (after stating the facts as above). Tlie_ demurrer is well taken, for all the defenses are argumentative denials. The plaintiff, to succeed, must prove an individual transaction between itself and the defendant’s testator. If it proves to be a firm transaction, it will be a fatal variance, without amendment. The only thing necessary for the defendant to show will be that the transactions upon which it" relies were not with the defendant’s testator, but with a firm f which he was a member. That shown, his complaint will have been answered. To plead that the agreement was with the firm is to plead evidence which will meet the allegation that it was with him. This, being true, all the allegations as to the character of the transactions, with the firm, the failure of the plaintiff to exhaust its remedies against the firm, and the insolvency of the estate of the defendant’s (estator, are irrelevant surplusage. The two last would perhaps be valid defenses, if the defendant’s testator was sued for what the complaint alleged to have been a firm debt, but not when it relies upon an individual transaction. The defendant’s citations are not apposite. In Linton v. Unexcelled Fireworks Co., 124 N. Y. 533, 27 N. E. 406, the.defense was that the plaintiff had given ground for discharge. That evidence did not meet the issue of the existence of the employment or its termination. Tt should therefore have been pleaded. In Duryee v. Lester, 75 N. Y. 442, the matter of defense did not tend to disprove the fact of the employment or the rendition of the services, which was all the complaint alleged. Wilbur v. Collins, 4 App. Div. 417, 38 N. Y. Supp. 848, seems to be the contrary, and I must concede that the reasoning of the case is not apparent to me. McKyring v. Bull, 16 N. Y. 297, 69 Aim Dec. 696. decides that payment must be pleaded, which was the law in in-debitatus assumpsit, even before the Hilary Rules, as I recall. In general terms it may be laid down that all evidence is admissible under a traverse which contradicts the truth of the allegations denied, and it must not be pleaded. The defendant does not raise any question of the validity of the complaint, and therefore the demurrers must be sustained. The plaintiff may take judgment sustaining the demurrers, with a respondeat ouster within 10 days after entry.