97 N.Y. 370, Clark v. Dillon

Citation:97 N.Y. 370
Party Name:ALBERT C. CLARK, Respondent, v. SYDNEY DILLON et al., Appellants.
Case Date:November 25, 1884
Court:New York Court of Appeals

Page 370

97 N.Y. 370

ALBERT C. CLARK, Respondent,

v.

SYDNEY DILLON et al., Appellants.

New York Court of Appeal

November 25, 1884

Argued Oct. 29, 1884.

Page 371

[Copyrighted Material Omitted]

Page 372

COUNSEL

Alex. Thain for appellants. The answer was a sufficient denial of the allegation, charging the defendants with having made the excavation. (Allis v. Leonard, 46 N.Y. 688; 22 Alb. Law Jour. 28; Calhoun v. Hallen, 25 Hun, 155; Haines v. Herrick, 9 Abb. N. C. 379; Youngs v. Kent, 46 N.Y. 672, 673.) If for any reason the answer in any respect could be considered indefinite or uncertain, it was the duty of the plaintiff to apply to make it definite and certain before trial. He cannot wait until the trial and then claim that it was not to be understood; or that it put nothing in issue. (Greenfield v. Mass. Mut. Life Ins. Co., 47 N.Y. 430; Wall v. Buff. Water-Works Co., 18 Id. 119; McGinness v. Mayor, etc., 13 N.Y. Weekly Dig. 522; Kerr v. Hays, 35 N.Y. 331.) There was no proof that the excavation was made in a public highway, and unless the answer can be construed into an admission, there was error in this respect as well. (Miller v. Brown, 56 N.Y. 383; Grinell v. Kirtland, 2 Abb. N. C. 400, note.)

T. C. Cronin for respondent. The existence of the excavation was admitted by the answer. (Miller v. McCloskey, 1 Code Pro. 252 and notes, 257; Spies v. Roberts, N.Y. Weekly Dig. 585; Hoffman v. N.Y. & C. R. R. Co., Id. 510; Hammond v. Earle, 5 Abb. N. C. 105; Fleishman v. Stern, 90 N.Y. 114.) As the judgment record contained the pleadings in the wife's action and the admission in the answer

Page 373

by defendants of the precise allegations claimed by them to be denied in this action it can be used on this motion. (Anderson v. Third Ave. R. R., 23 Alb. L. J. 214; Rich v. Rich, 16 Wend. 663; Bank of C. N. America, 2 Sandf. 718; Ritchie v. Putnam, 13 Wend. 524; High v. Wilson, 2 Johns. 46; Armstrong v. Percy, 5 Wend. 535; Burt v. Place, 4 Id. 591; Dresser v. Brooks, 3 Barb. 429; Duncan v. Duboys, 3 Johns. Cas. 125; Hearsey v. Pruyn, 7 Johns. 179.) The court will take judicial notice of the streets in the city of New York. (Brown v. Scofield, 8 Barb. 239.)

RUGER, Ch. J.

A defendant desiring to controvert the allegations of a complaint may do so either by a general or specific denial. An omission to do this in one form or the other is equivalent to an admission of the truth of the facts alleged and not controverted. Such denials are not required to be of any particular form or to be couched in any special phraseology, but they must be expressed in language that conveys to the mind of the reader a clear understanding of the facts they are intended to put in issue. It was formerly the settled rule to construe doubtful pleadings most strongly against the pleader, but this rule has been so far modified by the Code as now to require them to be liberally construed with a view to substantial...

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111 practice notes
  • 36 S.W. 654 (Mo. 1897), Huston v. Tyler
    • United States
    • Missouri Supreme Court of Missouri
    • June 22, 1897
    ...and that duty consists in expressing his meaning clearly and unmistakably. Snyder v. Free, 114 Mo. 360, 21 S.W. 847; Clark v. Dillon, 97 N.Y. 370. See, also, Young v. Schofield, 34 S.W. loc cit. 499. In short, the cases above cited recognize the doctrine that the "fundamental requireme......
  • 155 N.Y. 257, Stewart v. Union Mut. Life Ins. Co.
    • United States
    • New York New York Court of Appeals
    • March 8, 1898
    ...437; Shearman v. N.Y. C. Mills, 1 Abb. Pr. 187; Hopkins v. Everett, 6 How. Pr. 159; Stuber v. McEntee, 142 N.Y. 206; Clark v. Dillon, 97 N.Y. 374.) Defendant, in its affirmative defense, averred some of the conditions of the policy and set up new matter constituting a breach. Its failure to......
  • 174 N.Y. 1, Devoe v. New York Cent. and Hudson River Railroad Co.
    • United States
    • New York New York Court of Appeals
    • February 24, 1903
    ...127 N.Y. 40; People v. N. R. R. Co., 42 N.Y. 217; Potter v. Smith, 70 N.Y. 299; McLeod v. Maloney, 2 N.Y. S. R. 472; Clark v. Dillon, 97 N.Y. 371; Connor v. Keese, 105 N.Y. 643; Ferris v. Page 3 Hard, 135 N.Y. 361; Volkmar v. Ry. Co., 134 N.Y. 422.)Defendant was negligent in failing to prom......
  • 212 N.Y. 48, Jacobs v. Monaton Realty Investing Corporation
    • United States
    • New York New York Court of Appeals
    • June 9, 1914
    ...A.D. 61, 65; Curtis v. Leavitt, 15 N.Y. 9; Glennan v. R. T. & S.D. Co., 209 N.Y. 12; Chapman v. Lynch, 156 N.Y. 551; Clark v. Dillon, 97 N.Y. 370; F. L. & T. Co. v. Clowes, 3 N.Y. 470; F. L. & L. Co. v. Curtis, 7 N.Y. 466; C. C. Bank v. Risley, 19 N.Y. 369.) The defendant corpor......
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111 cases
  • 36 S.W. 654 (Mo. 1897), Huston v. Tyler
    • United States
    • Missouri Supreme Court of Missouri
    • June 22, 1897
    ...and that duty consists in expressing his meaning clearly and unmistakably. Snyder v. Free, 114 Mo. 360, 21 S.W. 847; Clark v. Dillon, 97 N.Y. 370. See, also, Young v. Schofield, 34 S.W. loc cit. 499. In short, the cases above cited recognize the doctrine that the "fundamental requireme......
  • 155 N.Y. 257, Stewart v. Union Mut. Life Ins. Co.
    • United States
    • New York New York Court of Appeals
    • March 8, 1898
    ...437; Shearman v. N.Y. C. Mills, 1 Abb. Pr. 187; Hopkins v. Everett, 6 How. Pr. 159; Stuber v. McEntee, 142 N.Y. 206; Clark v. Dillon, 97 N.Y. 374.) Defendant, in its affirmative defense, averred some of the conditions of the policy and set up new matter constituting a breach. Its failure to......
  • 174 N.Y. 1, Devoe v. New York Cent. and Hudson River Railroad Co.
    • United States
    • New York New York Court of Appeals
    • February 24, 1903
    ...127 N.Y. 40; People v. N. R. R. Co., 42 N.Y. 217; Potter v. Smith, 70 N.Y. 299; McLeod v. Maloney, 2 N.Y. S. R. 472; Clark v. Dillon, 97 N.Y. 371; Connor v. Keese, 105 N.Y. 643; Ferris v. Page 3 Hard, 135 N.Y. 361; Volkmar v. Ry. Co., 134 N.Y. 422.)Defendant was negligent in failing to prom......
  • 212 N.Y. 48, Jacobs v. Monaton Realty Investing Corporation
    • United States
    • New York New York Court of Appeals
    • June 9, 1914
    ...A.D. 61, 65; Curtis v. Leavitt, 15 N.Y. 9; Glennan v. R. T. & S.D. Co., 209 N.Y. 12; Chapman v. Lynch, 156 N.Y. 551; Clark v. Dillon, 97 N.Y. 370; F. L. & T. Co. v. Clowes, 3 N.Y. 470; F. L. & L. Co. v. Curtis, 7 N.Y. 466; C. C. Bank v. Risley, 19 N.Y. 369.) The defendant corpor......
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