Duncan a. Lawrence. DUNCAN a. LAWRENCE. New York Superior Court; General Term, May, 1858. PLEADING.-DENIAL OF KNOWLEDGE OR INFORMATION SUFFICIENT TO FORM A BELIEF. When, in an action by an indorsee of a promissory note against the maker, all the allegations of the complaint employed to show the title and possession of the note to be in the plaintiff, are put at issue by the answer, the answer is a sufficient pleading, although it puts each of such allegations at issue by an averment that the defendant has not any knowledge or information thereof sufficient to form a belief.* Appeal by defendants from an order that the plaintiffs have judgment on account of the frivolousness of the answer. The complaint stated that the defendants were partners, and on the 24th of August, 1857, in their firm name of S. & T. Lawrence & Co., made a note of that date, payable to their own order; and sets forth a copy of the note, and then alleged that they "indorsed the said note in writing, in their said firm name of S. & T. Lawrence & Co., in blank, and that the said note was afterwards, and before its maturity, duly transferred and delivered, for value, to the said plaintiffs, then and still being bankers and copartners, carrying on business at the city of New York, under the firm name of Duncan, Sherman & Co., and that the said plaintiffs, before the maturity of said note, became and still are the lawful owners and holders thereof for value;" that the note is past due and unpaid, and prayed judgment for the amount due, including interest. The defendants, in their answer, stated that "they have no knowledge or information sufficient to form a belief whether the plaintiffs now compose or ever did compose the copartnership or firm of Duncan, Sherman & Co., or whether the plaintiffs are or ever were copartners, or whether the promissory note set forth in the complaint was ever at any time transferred or delivered. to plaintiffs, or whether the plaintiffs before the maturity of said *The contrary rule is held in the New York Common Pleas, Kamlah a. Salter, Ante, 226. Duncan a. Lawrence. note, or at any time became, or now are, the lawful owners or holders of said note." The complaint and answer were both verified. The plaintiffs moved at special term for judgment, on account of the frivolousness of the answer, and the motion was granted. The defendants appealed. A. R. Dyett, for appellants. Jeremiah Larocque, for respondents. BY THE COURT.*-Bosworth, J.-The complaint does not state that the defendants transferred or delivered the note to the plaintiffs. The Code permits any allegation in a complaint to be put at issue by an answer which states that the defendant has not "any knowledge or information thereof sufficient to form a belief." (Code, § 149, subd. 1.) All the allegations in the complaint, which are inserted to show title to the note to be in the plaintiffs, are severally put at issue by an answer in that form. They are thus as directly and absolutely controverted, according to the present rules of pleading, as if the truth of each had been expressly denied. The plaintiffs, on the trial of this action, cannot recover without first giving evidence sufficient to establish, prima facie, that the note has been delivered to and is held by them. When, in an action by an indorsee of a promissory note, the answer puts at issue, in a form prescribed by the Code, all the allegations employed in a complaint to show the title and possession of the note to be in the plaintiffs, it is not only not frivolous, but it is a sufficient pleading. (Metropolitan Bank a. Lord, 4 Duer, 630.) The answer in this action is, therefore, sufficient. It raises a material issue, the truth of which the plaintiffs must establish, in · order to recover. The order appealed from must, therefore, be reversed, and $10, the costs of the appeal, and the costs of opposing the motion for judgment, must abide the event of the action. • Present, Bosworth, Hoffman, Slosson, and Woodruff, JJ. VOL. VI.-20 Grogan a. Raphael. GROGAN a. RAPHAEL. New York Common Pleas; Special Term, March, 1858. MECHANICS' LIEN.-DEFENCES OF CONTRACTOR.-COUNTER-CLAIM. In an action to foreclose a mechanic's lien, a contractor who is made a party defendant may set up a counter-claim against the plaintiff, and recover judgment for an excess. The judgment against a contractor, authorized by the amendatory act of 1855 (Laws of 1855, 760, ch. 404, § 5), is a personal judgment, and entirely distinct from the judgment to be had against the owner, which is not personal, but in rem. Any defence which would be available to the contractor, if he were sued, in an ordinary action, is available to him in proceedings for the foreclosure of the lien, where he is made a defendant. Foreclosure of mechanic's lien. The facts appear sufficiently in the opinion. C. Shaffer, for the plaintiff. W. H. Anthon, for the defendant. DALY, F. J.-This is an action to foreclose a lien. It is brought against the owner Raphael and his contractor McMahon, for materials furnished by the plaintiff to the contractor McMahon, in pursuance of a contract made by McMahon with Raphael for the erection of three dwelling-houses. The amount claimed to be due by the plaintiff is $202. The contractor McMahon, in his answer, sets up a counter-claim against the plaintiff for the sum of $375, founded upon a promissory note made by the plaintiff to the order of one B. Clark, which note was indorsed by Clark and delivered to the contractor McMahon, and was due and unpaid when Grogan the plaintiff filed his lien. The defendant McMahon asks that the amount due upon the note may be set off against the amount of the plaintiff's claim, and that he have judgment against the plaintiff for the amount of the excess of said note, over and above the plaintiff's demand. The only question in the case is, whether he can Bulkley a. Bulkley. avail himself of a counter-claim against the contractor in an action of this description. I see no objection to it. By the amendatory act of 1855 (Laws of 1855, 760, ch. 404, $5), the contractor may be made a defendant, and a personal judgment rendered against him of the amount which shall be found owing by him to the party filing a lien. This is entirely distinct from the judgment against the owner, which affects only his right and title in the premises upon which the lien is an encumbrance, and is, as respects him, strictly a proceeding in rem. When the party who has imposed the lien makes the contractor a defendant, it is, in effect, the same as commencing an action against him for the recovery of the claim, and the contractor may avail himself of any defence to the claim, and has all the rights, as a defendant, which he would have had if he had been sued in an ordinary action, independent of the proceedings to foreclose the lien. He may avail himself of a set-off to the whole, or to part of the plaintiff's claim; or if the set-off exceeds the claim of the plaintiff, he may have judgment for the excess. There is no reason why he should be turned over to another action to sue for the residue, when both parties are before the court, and every right or advantage they could have in another action is available in this. Judgment will, therefore, be rendered discharging the lien, with cost to the owner, and a judgment for the defendant McMahon, against the plaintiff for the amount of the note and interest over and beyond the plaintiff's claim. BULKLEY a. BULKLEY. Supreme Court, Seventh District; Special Term, January, 1858. SUMMONS.-IRREGULAR OR FRAUDULENT SERVICE. When the summons in an action is not legally served, the court have no jurisdiction of the defendant, and in such case all proceedings based on the pretended service are void. The object of the summons is to give the defendant an authentic and fair notice that an action has been commenced, and to notify him of the time allowed to Bulkley a. Bulkley. prepare and interpose a defence; and when so notified, he is entitled, in cases that may require it, to apply to the court for any additional time that may be necessary for that purpose; and any trick or device that deprives the defendant of these just and reasonable provisions, is a fraud upon the spirit and intent of the statute, and on the rights of the party. Putting the defendant in the unknown possession of a summons, disguised or enveloped, so as to conceal from him the knowledge which it was the intent of the law should be communicated, is not a good service; and the subsequent discovery by the defendant, upon whom such an attempted service is made, of the contents of the summons, is not to be deemed a good service, if the defendant is beyond the limits of the State when he makes such discovery. The plaintiff accompanied the defendant to the steamer on which she was embarking for California, and there, at the last moment before the sailing of the vessel, delivered, or caused to be delivered, to her, a sealed box, which he informed her contained a present for a third person in California, and a note for herself, but which, in reality, as she found by opening it upon the voyage, contained the summons in the action. Upon the usual affidavit of service of the summons, and no appearance by the defendant, the plaintiff proceeded to judgment: Held, that the service was fraudulent and void, and that the summons, proceedings, and judgment must be set aside on defendant's motion. The neglect of the defendant to make such motion immediately on her return to this State, could not be deemed to give the court jurisdiction. Motion to set aside judgment, and all proceedings in an action for divorce, on the ground of an irregular or fraudulent service of the summons, by which the action was commenced. The action was for a divorce a vinculo matrimonii. The venue was laid in Saratoga county, and the defendant not having appeared in the action, judgment for the plaintiff was entered, on the report of the referee, in January, 1857. The facts appearing by the motion papers were as follows:The plaintiff was an attorney and counsellor at law, living and keeping his office in the city of New York; the defendant was his wife. The parties were married May 17, 1852, and had lived and cohabited together, as man and wife, from the time of their marriage down to October 6, 1856. They had one child, a son, about four years old. On October 6, 1856, defendant, with the plaintiff's consent, left the city of New York, on board the steamship Illinois, to pay a visit to her mother, then living in Sacramento, California. The plaintiff accompanied her to the steamship, and spent the last hour before its departure in apparently friendly and affectionate conversation with her on board. In that conversation |