Jones agt. The United States Slate Company. davit of verification of his complaint nunc pro tunc. (9 How. 31; Code 1852, § 176.) It is objected that there was no legal evidence of the service of the summons, and that there should have been an affidavit annexed, verifying the signature of the agent. (5 How. Pr. R. 341; 1 Code Rep. N. S. 42; 1 Whit. 139, 140.) But it turns out by the affidavit of Jones, that he was the managing agent of the company, and did actually sign the admission of service as such agent. Besides, this is an irregularity which should also have been taken advantage of at the earliest moment, and the plaintiff may also be at liberty to amend, if he is advised it is necessary, and annex an affidavit verifying the signature of the agent. The affidavit is already made, and forms part of the opposing papers on this motion. The question then arises on the merits. The affiant Butler, makes a general affidavit of merits, and claims that the facts constituting it, are detailed in the affidavit. No facts are detailed, except that plaintiff is indebted to the company in the sum of about $366, and which the affiant swears, he hopes to be able to prove. He swears, it is true, that the judgment was obtained secretly, and by collusion with the agent Jones, who is the brother of plaintiff, and with a view, as he believes, of defrauding and injuring him. But in this he is contradicted by three affidavits, all swearing that the debt was not obtained by collusion, but was honestly due, and that he (Butler) admitted to them all, that the debt was due, but that plaintiff must wait until the company had means to pay. His general affidavit of merits can hardly avail to set aside the judgment and execution, after the lapse of time since the knowledge of the commencement of the action, so as to prejudice the rights of the plaintiff. (Patterson agt. Graves, 11 How. 91.) The case is a peculiar one. Butler swears that he is the secretary and treasurer of the company, and that the defence has merits. R. M. Jones, on the other hand, deposes that he is a member of the company, being a large stockholder, and the general and managing agent of the company, and that the reason that he did not defend was, that he well knew the debt Jones agt. The United States Slate Company. was a just one, and that the company had no defence. He further swears, that he informed Butler that the suit was commenced against the company, and that Butler agreed with him that there was no defence, but that the company had no means of paying, and that plaintiff must wait until they had means of paying, and that they could beat him on execution. This is not, therefore, the ordinary case of a defendant's asking to be let in to defend on an affidavit of merits. It is one member of a company swearing against another, one affirming and one denying that there is a defence. Under these circumstances, and the additional facts which appear, that Butler is a non-resident, and has no other property in the state, save that which has been attached; that he has been sued as a member of the company, and that the action can only be maintained on the averment under the section of the act which requires that a judgment shall have been ob tained against the company, and an execution returned unsatisfied; that he has, since the service of the attachment, conveyed the land attached to his brother, and that the company are wholly insolvent, it would not, in my judgment, be the exercise of a proper discretion to permit him to come in and hazard all the rights of the plaintiff, which he has by his diligence obtained. I am aware of the rule which has obtained, that the merits ought not to be tried by affidavit, and I would be inclined to permit Mr. Butler to come in and defend the action, if by permitting the judgment and execution to stand as security, the plaintiff's rights under his attachment against Butler, might not thus be put in jeopardy, especially as he has conveyed to his brother. As I am not certain on this point, and as he can have no objection to providing security for the pay ment of any recovery that may be had on the trial, if he has any confidence in the defence which he swears to, I will permit him to come in and interpose a defence, on his making and filing a bond or undertaking, with sufficient surety, who shall justify and the undertaking be acknowledged and filed with the clerk of this court, that he will pay any amount which the plaintiff shall finally succeed in establishing on a trial of said Kelly agt. Barnett and others. action, with interest and costs, within thirty days after service of a copy of this order on his attorney, and if he shall do so, all proceedings against him in the action on the attachment, are to be stayed, until after the trial of the action; and the motion to set aside the attachment is to be denied. The plaintiff having had granted him a favor on this motion, no costs are to be allowed to either party. Order accordingly. SUPREME COURT. JOHN KELLY agt. MILFORD BARNETT and others. Vagueness in pleading, it is well settled, is not frivolousness, it is to be corrected by amendment, and not visited by judgment. On an application for judgment on the ground that the answer is sham or frivolous, it is enough that a good defence is "shadowed forth." If it can be seen that the defence set up, if true, is good, it is sufficient to prevent a summary judgment. It is only necessary that the defence should not be clearly bad. In this case, the defendants set up a want of consideration in the note given on the purchase of wines, so called; alleging that the wines purchased, called "Port," "Pale Sherry," Burgundy," "Muscat," and "Madeira," turned out to be mere sham fabrications. Held, that it was due to the public health that a full trial should be had. If it was true, (as alleged in the answer,) that manufactories existed in the city of New-York, for the getting up of "unwholesome and spurious mixtures," to be palmed off upon the unsuspecting as wines of "the pure juice of the grape," under the captivating names above mentioned, the courts, instead of suppressing, should assist in their investigation and exposure. New-York Special Term, November, 1857. MOTION for judgment on account of frivolousness of the answer for plaintiff. Kelly agt. Barnett and others. ROOSEVELT, Justice. The defendants object to paying the note on which this suit is brought, on the ground that it was given on the purchase of certain alleged wines called "Port," "Pale Sherry," "Burgundy," "Muscat," and "Madeira," which turned out to be mere sham fabrications. Considering this answer as a mere sham defence, the plaintiffs on that ground, or rather as they express it, on the ground of its "frivolousness," apply for a summary judgment without further trial. The question then presents itself—and it is the only one now to be determined-is such a defence, admitting it to be true, to be treated as a trifling with judicial proceedings? Wines, say the defendants, of the denominations mentioned, are the product of grapes of peculiar character and excellence, grown and manufactured in different parts of Europe, "and owe all their value to their purity, to the skill exercised in their production and fermentation, and to the characteristic excellences impressed on each by the peculiarities of the climate and soil of the countries where they are produced;" whereas, the fluids set forth in the bills rendered by the plaintiff Kelly, and described by the technical names of Port, Sherry, Madeira, Muscat and Burgundy, "were not wines at all, but mere mixtures of the most noxious and deleterious character, concocted in the city of New-York, by the plaintiff, with intent to deceive and defraud," and that "said mixtures contained no particle whatever of the juice of the grape in their composition, and were poisonous and of no value." The defendants, therefore, insist not only that the note was without consideration, but that they have a counter claim of $3,000 against the plaintiff for the damages sustained by them from his "worthless and unmerchantable mixtures, and in consequence of his wilful misrepresentations and fraudulent acts." Admitting this answer to be true-as the plaintiff on the present application must-can any one say, "that its insuffi ciency as a defence is so glaring that the court can determine it upon a bare inspection without argument?" (6 How. Pr. Rep. 358.) Roosevelt agt. Draper and others. The Code allows such motions to be made on a notice of only five days, and "to a judge either in or out of court." It indicates, therefore, in the strongest manner, the cases to which they should be confined. A mode of giving judgment, so stringent and summary, was never intended for a case like the present. The answer may perhaps be defective in precision, it omits to aver with absolute directness that the defendants purchased the "fluids" in question, in the belief that they were the "genuine article," or that they paid for them the "genuine price." But vagueness in pleading, it is well settled, is not frivolousness; it is to be corrected by amendment, and not visited by judgment. It is enough on this application that a good defence is "shadowed forth." The one set up by Messrs. Barnett & Co., if true, is good; it is only necessary that it should not be clearly bad. It is due also to the public health that a full trial should be had. If it be true that manufac tories exisit in this city for the getting up of "un wholesome and spurious mixtures," to be palmed off upon the unsuspecting as "the pure juice of the grape," under the captivating names of Burgundy, Madeira, Sherry, Port and Muscat, the courts instead of suppressing, should assist in their investigation and exposure. Motion denied, with costs. SUPREME COURT. CORNELIUS V. S. ROOSEVELT agt. SIMEON DRAPER and others. Where the city of New-York sell real estate, and an action is brought by a plaintiff as a tax payer, and also as a creditor of the city, by reason of his owning $100, or over, of city stock, not due, to set aside the conveyance as void or improvident, Held, that the action cannot be sustained. Why? Because, his interest as a tax payer of the city, is too uncertain to entitle him to the interposition of the court, |