Conselyea v. Swift
| Decision Date | 07 December 1886 |
| Citation | 9 N.E. 489,103 N.Y. 604 |
| Parties | CONSELYEA and another, Ex'rs, etc., v. SWIFT. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action on promissory note. Judgment for defendant. Plaintiffs appealed.
Mr. Troy, for appellants.
Mr. Ross, for respondent.
The complaint contains seven causes of action. As to the first six no question arises. The seventh makes out a perfect case upon a promissory note against the defendant as indorser, and the answer denies none of the plaintiffs' allegations, but sets up affirmatively that the defendant was an accommodation indorser, and that the note was in fact paid out of moneys in the hands of the plaintiffs' testator applicable thereto. The defendant adds, upon information and belief, ‘that the said plaintiffs are not the lawful owners and holders of said note, and that he is not indebted to them thereupon in any sum whatever.’ This clause is relied upon by the respondent as an answer to the appeal. It is not sufficient. It is not a denial of any averment. Neither of the facts so controverted are alleged in the complaint. It is merely an affirmative statement of a conclusion drawn from the preceding new matter in the answer; and, while it might have been omitted as wholly unnecessary, it put in issue no part of the plaintiffs' case. The whole burden of proof lay upon the defendant, and without evidence the plaintiff was entitled to a verdict. Fleischmann v. Stern, 90 N. Y. 110.
The learned counsel for the respondent has placed upon his points cases from other states. We do not refer to them, for our own Code is upon this subject very explicit, and requires each material allegation in the complaint, not controverted by the answer, to be taken as true. Section 522. In this case, as before suggested, no allegation is denied. It was therefore for the defendant to establish the defense set up, and, as he thus held the affirmative, he had the right to open and close the evidence; and the learned trial judge erred in ruling to the contrary.
The judgment appealed from should therefore be reversed, and a new trial granted, with costs to abide the event.
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...Kan. 314, 23 P. 566;Banking Co. v. Walker, 121 N. C. 115, 28 S. E. 253;Truesdale Mfg. Co. v. Hoyle, 39 Ill. App. 532;Conselya v. Swift, 103 N. Y. 604, 9 N. E. 489;Curtis v. Perry, 33 Neb. 519, 50 N. W. 426. That which was said by this court in Yancey v. Northern Pacific Ry. Co., 42 Mont. 34......
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...... [62 Or. 527] Evid. (16th Ed.) § 516; Curtis v. Perry, 33 Neb. 519, 50 N.W. 426; Wolfe v. Nall,. 62 Ala. 24; Conselyea v. Swift, 103 N.Y. 604, 9 N.E. 489; Bradley, Wheeler & Co. v. Harwi, 43 Kan. 314,. 23 P. 566; Willis v. Holmes, 28 Or. 265, 269, 42 P. ......
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Bell v. Grimstad
......Harwi, 43 Kan. 314, 23 P. 566; Banking Co. v. Walker, 121 N.C. 115, 28 S.E. 253; Truesdale Mfg. Co. v. Hoyle, 39 Ill.App. 532; Conselya v. Swift, 103 N.Y. 604, 9 N.E. 489; Curtis v. Perry, 33 Neb. 519, 50 N.W. 426. . . That. which was said by this court in Yancey v. ......
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...946, 994 NYS2d 45 (2014), §1:14 Conroe v. Barmore-Sellstrom, Inc. , 12 AD3d 1121, 785 NYS2d 629 (4th Dept 2004), §1:14 Conselyea v. Swift , 103 NY 604, 9 NE 489 (1886), §21:51 Consolidated Edison Co. of New York v. Allstate Insurance Co. , 283 AD2d 322, 724 NYS2d 853 (1st Dept 2001), §28:34......
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Opening Statement and Court's Preliminary Remarks
...(and not requiring reversal as per CPLR 2002), but still, reversal on this ground is not entirely unheard of. [ See Conselyea v. Swift , 103 NY 604, 9 NE 489 (1886).] §21:52 Order When There Are Multiple Parties In the case of multiple parties on each side, opening statements are customaril......
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Opening Statement and Court's Preliminary Remarks
...(and not requiring reversal as per CPLR 2002), but still, reversal on this ground is not entirely unheard of. [ See Conselyea v. Swift , 103 NY 604, 9 NE 489 (1886).] §21:52 Order When There Are Multiple Parties In the case of multiple parties on each side, opening statements are customaril......
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Opening Statement and Court's Preliminary Remarks
...(and not requiring reversal as per CPLR 2002), but still, reversal on this ground is not entirely unheard of. [ See Conselyea v. Swift , 103 NY 604, 9 NE 489 (1886).] §21:52 Order When There Are Multiple Parties In the case of multiple parties on each side, opening statements are customaril......