Reilly a. Cook.

and factor. (Considerant a. Brisbane, 22 N. Y., 389.) If a demurrer were interposed to the complaint on account of the avowed agency, it would be frivolous. (Bank of Wilmington a. Barnes, 4 Abbotts' Pr., 226; People a. McCumber, 15 How. Pr., 186.) The averments are merely an inconsistent statement with plaintiff's allegations, and do not, therefore, amount to a denial of them. (Wood a. Whiting, 21 Barb., 190.) The answer is a violation of the rules of pleading, and as such is insufficient. (Fry a. Bennett, 1-Code R., 238.) The words set forth," used throughout the answer, are equivocal. No goods are "set forth" in the complaint. These words should be construed against the pleader (Holstein a. Middleton, 6 Barn. & Cress., 29); especially when it is complained they are used for a sham purpose.

III. The objection to the answer is properly raised by motion: a demurrer is unnecessary. 1. It is objected that the answer is sham a demurrer to it would assume it real, and put in in good faith. (People a. McCumber, 18 N. Y., 315.) 2. The motion is, in effect, a demurrer. Defendant has the same remedy of appeal. (Hull a.. Smith, 8 How. Pr., 150; Roosa a. Saugerties, Ib., 237; Quin a. Chamberlin, 11 N. Y. Leg. Obs., 155; Loomis a. Dorsheimer, 8 How. Pr., 9.)

IV. It is no objection that notice of trial has been given. The objection to the answer may be taken at any time. (Stokes a. Hagar, 1 Code R., 84; Brewster a. Hall, 6 Cow., 34.) The notice is for trial unless otherwise disposed of.

V. The second defence should be stricken out as sham and irrelevant, and the first and third defences as frivolous, and judgment be ordered for the plaintiff. (Code, §§ 152, 247; People a. McCumber, 18 N. Y., 315.) 1. The defendant has no right to amend, as there never was a real answer to amend. (Aymar a. Chase, 1 Code R., 141.) 2. If the defendant desires to amend, he should make a motion for that purpose. (Marquisee a. Brigham, 12 How. Pr., 399.)

A. R. Dyett, opposed.

WHITE, J.-The complaint in this action alleges that the plaintiff, as agent and factor of one Henry Stephens, sold and delivered to the defendant, at his (the defendant's) request,

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Reilly a. Cook.

goods to the value of $293.18, for cash; that the defendant agreed to pay that price for them; that said sum was due at the time of the commencement of this action; that since it became due, the defendant repeatedly promised to pay it to the plaintiff, and has not done so; and judgment, thereupon, is prayed, &c.

The answer is generally divided into first, second, and third defences, but it all consists in this: it denies that the plaintiff sold the goods, and alleges that Henry Stephens owned them and sold them to the defendant upon a credit, which had not expired when this action was commenced; and it alleges that the plaintiff did not own the goods. This is the whole answer. It does not deny the allegations of the complaint, that the plaintiff sold the goods as the factor or agent of Stephens, nor the allegation that the defendant promised to pay the plaintiff for them.

The allegations in the answer of ownership in Henry Stephens, and that he sold the goods to the defendant, are not relevant statements; nor are they in contradiction with any of the allegations of the complaint, which plainly avers the ownership of Stephens. But if any purpose can have been intended by them (and it must be presumed that some purpose was intended by them), it can only be this: that they were designed to qualify the previous positive denial in the answer, that the plaintiff had sold the goods, and to indicate that the denial was intended only to raise in that manner, as a supposed defence, the point that the plaintiff did not, as owner, sell them, and had therefore no right to sue for their price. This, I think, upon a consideration of the whole context, is the fair construction to be given to this answer, and the point which it presents is obviously no defence.

The uncontroverted sale of the goods by the plaintiff as the factor or agent of Stephens, and the promise of the defendant to pay the plaintiff, as stated in the complaint, are all sufficient to vest the plaintiff with a right to collect and sue for the price, as he has done in this action. (Considerant a. Brisbane, 22 N. Y., 389.)

The answer must therefore be stricken out as frivolous, with ten dollars costs; but as it contains an intimation that the sale had been made upon a credit, which had not expired when the action was commenced, the defendant will have leave to serve

North a. Sargent.

an amended answer, presenting that defence in a proper form, within ten days after the service of the order to be entered pursuant to this decision; the issue, however, in case of such amendment, to be of the same date that it now is, and the cause, if on the calendar, to retain its present place there.

NORTH a. SARGENT.

Supreme Court, First District; General Term, October, 1861. NEW TRIAL, UPON PAYMENT OF COSTS.

When a new trial, upon the ground that a verdict was against evidence, had been granted by the general term " upon payment of all costs, after notice of trial," and the respondent claimed, under the order, the costs of the appeal, which included five term-fees ;-Held, on appeal from an order of the special term, disallowing the five term-fees, that the order at general term was informally entered, and that the five term-fees should not be included in the costs to be paid as a condition of granting a new trial.

Appeal from an order, disallowing five term-fees in a bill of costs, directed to be paid as a condition of granting a new trial.

In this action, an appeal had been taken by the plaintiff from a judgment entered upon the verdict of a jury, to the general term; the general term granted a new trial, on the ground that the verdict was against evidence, on payment of all costs from and after notice of trial. On the taxation of the costs of the general term, on appeal, the plaintiff objected generally to all the items in the bill, claiming that the defendant was not entitled to any costs on the appeal, but only to the costs below. The clerk adjusted the costs, including fees for five terms, at which the cause was on the calendar of the general term, and not reached. From this taxation the plaintiff appealed. No proof or affidavit was offered on the part of the plaintiff before the clerk on the adjustment, nor was any objection made, save the general objection above stated. The special term, however, on

North a. Sargent.

the appeal, struck out the five term-fees allowed by the clerk, and allowed all the other items of the bill, which amounted to $50.84. From this order of the special term, the defendant appealed to the general term.

I. T. Williams, for the appellant.-I. As the term-fees were regularly adjusted by the clerk, and allowed by him, the plaintiff can review such adjustment and allowance only upon affirmative evidence offered before the clerk on taxation; and as there was no such evidence offered, the presumption on appeal is, that the items were properly allowed. On appeal from taxation, the burden of proving that items were improperly allowed rests upon the party appealing; and unless it should affirmatively appear that items were improperly allowed, the court has no power to strike out such items.

II. The order of the general term gave to the defendant all costs in the action, from and after notice of trial. This includes costs on appeal as well as costs of trial. So long as the order of the general term remains unreversed, not modified or vacated by the general term, the special term has no power over such order, to reverse, modify, or vacate the same, but must comply with the terms thereof..

III. If the court is of the opinion that the new trial should have been granted, on payment of the costs below, and that the costs of appeal should have abided the event, it has no power now on this appeal to modify that order. 1. The plaintiff has not appealed, and is not here objecting. 2. The plaintiff cannot have affirmative relief as respondent in the general term. 3. There is nothing before the court touching or relating to the costs of trial. All the papers here refer to the costs on appeal; and by affirming the order, the court do not effect an amendment of the order of the general term, but rather an affirmance of it, by permitting the defendant to have a part of the costs of the appeal to wit, all the items thereof, save the five in question. 4. The court must affirm or reverse the order appealed from. If they affirm it, they decide that the defendant is entitled to a part of the costs of the appeal to the general term, but not all of them; and it is competent for the special term to arbitrarily strike out five items of costs without proof that they were erroneously allowed by the clerk.

North a. Sargent.

IV. It is now too late for the plaintiff to object to the payment of the costs of the general term, nor can he be heard on this motion so to object. He appealed from the taxation of the. clerk to the special term, and on that appeal the special term did allow costs-part of the costs, at least, on the appeal. From the order of the special term the plaintiff does not appeal, he is content therewith; he thereby admits the right of the defendant to the costs of appeal to the general term, and does not seek to modify the order of the general term granting such costs.

Andrew Thompson, for the respondent.-I. The costs of the appeal and all other costs, except of the former trial solely, are to abide the event. (11 How. Pr., 454; 3 Duer, 659; citing 14 Eng. Law & Eq., 532.)

II. All the costs taxed are caused by the erroneous judgment of the court in not granting a new trial, and should not be charged to the plaintiff. (8 How. Pr., 1.)

III. The true rule is, to charge the party obtaining the favor of a new trial with the costs of such proceedings as are vacated for that purpose. (4 How. Pr., 361.)

BY THE COURT.*-INGRAHAM, J.-The defendant's counsel caused the increase of term-fees by insisting before the judge at special term on retaining the verdict. Having been in error there, he ought not to receive the benefit of his error by being paid the term-fees incurred while the appeal was pending. We think the order made at special term, now appealed from, should be affirmed without costs. The order at the general term is informally entered, and ought not to have included these termfees.

Order appealed from affirmed without costs.

*Present, CLERKE, P. J., INGRAHAM and LEONARD, JJ.