Scofield agt. Van Syckle. SUPREME COURT. CYRUS SCOFIELD and GEORGE Fox agt. RENSSELaer W. Van SYCKLE. A demurrer to a complaint at law, for the non-joinder of parties defendant, can not be sustained unless it appears by the complaint that some other party for whose non-joinder the demurrer is interposed, is living at the time the action is commenced. The objection otherwise must be taken by answer. New York General Term, March, 1862. LEONARD, INGRAHAM and CLERKE, Justices. THE Complaint in this action was for the amount of a promissory note made by the firm of Taylor & Van Syckle, on the 30th July, 1853, to the order of John I. Hollister, for the sum of $1486, with interest from date, who, for a valuable consideration, indorsed and delivered the same to the plaintiffs, and demanded judgment against the defendant, Rensselaer W. Van Syckle for the sum of $682.87, with interest and protest, as the balance due thereon. The defendant demurred to the complaint on the following ground: "That there is a defect of parties defendants; the cause of action being a joint action against the defendant and one Stephen O. Taylor. The demurrer was brought on to argument before Mr. Justice SUTHERLAND, at the special term in July, 1860who ordered judgment upon the demurrer for the plaintiffs, with costs, with liberty to the defendant to answer in twenty days, on payment of costs. From this decision the defendant appealed to the general term. JOHN H. WHITE, for appellant. JOHN FITCH, for respondent. By the court, LEONARD, Justice. A complaint is not demurrable for defect of parties defendant, at law, unless it Bates agt. Rosekrans. appears thereby that some other party for whose non-joinder the demurrer is interposed is living at the time the action is commenced. The objection in such case must be taken by answer. (Brainard agt. Jones, 11 How. Pr. R., 569; Burgess agt. Abbott, 1 Hill R., 476; S. C. 6 Hill, 135; affirmed in court of errors.) The order appealed from is affirmed, with costs, and judgment ordered for the plaintiff, unless the defendant answer in twenty days and pay the costs of demurrer and of this appeal. SUPREME COURT. JOHN W. BATES agt. ENOCH H. ROSEKRANS. It seems, that the old common law rule prevails in regard to matters of substance in a pleading: that the pleading is to be construed most strongly against the pleader. Where, in an action on contract, the answer is susceptible of being construed to contain two defences, one of payment, and the other requiring an account-one requiring a reply, and the other not, the answer should be construed as setting up only the defence of payment, and not considered as containing a counter-claim requiring a reply. Especially should this construction be given to the answer, where all the alleged counter-claims are liable to the objection that they are not apparently set up as such, but are set up by way of defence, and do not claim affirmative relief. The taking by the plaintiff of a note of the defendant alone, is not in law a satisfaction of a note of the defendant and a third person, held by the plaintiff, unless expressly agreed to be taken in absolute payment. Albany General Term, December, 1861. THIS action was brought upon a joint and several promissory note, dated September 11th, 1851, for the payment of the sum of $2,553.71, with interest, on the first day of February, 1852, made by the defendant and one Andrew Bates agt. Rosekrans. Bigham, payable to the order of, and indorsed by Bates & Griffin. The action was tried at a circuit court held in Rensselaer county, on the 27th day of December, 1860, before Hon. R. W. PECKHAM, and a jury. On the trial, and before any evidence was given, the defendant's counsel made a motion for judgment upon the pleadings, upon the ground that the plaintiff had not replied to the counter-claims of the defendant contained in the answer, or either of them. The court overruled the motion, and the defendant's counsel excepted. The plaintiff's counsel then introduced in evidence and read said note, and proved that the interest thereon to the day of the trial was $1,661.47, making due on the note for principal and interest $4,215.18. The plaintiff then rested. The defendant's counsel then renewed his motion for judgment, and also moved that the complaint be dismissed, upon the ground above stated. The court overruled the motions, and each of them. To each of which rulings the defendant's counsel excepted. The defendant's counsel then requested to go to the jury on the question of payment, and upon each and every other issue of fact presented by the evidence. The court declined this request, and the defendant's counsel excepted. The court then directed the jury to find a verdict for the plaintiff for the amount of the note as proved. To which direction the defendant's counsel excepted, and requested the court to submit the cause to the jury. The jury thereupon, under the direction of the court, found a verdict for the plaintiff for the sum of four thousand two hundred and fifteen dollars and eighteen cents. Judgment having been entered on the verdict, the defendant appealed to the general term. Bates agt. Rosekrans. JOHN B. GALE, for plaintiff, respondent. By the court, HOGEBOOM, Justice. The defendant, upon the trial, made two objections to the plaintiff's recovery: 1. That the answer contained counter-claims, to which there was no reply, and therefore that the defendant was entitled to judgment. 2. That the pleadings in connection with the plaintiff's admission, as sworn to in his first verified complaint, showed that the demand prosecuted had been paid. I. As to the alleged counter-claims. They are alleged to be contained in the 4th and 5th answers. (1.) The fourth answer in substance alleges that after the maturity of the note prosecuted, and while the plaintiff was the holder thereof, Bigham, one of the joint and several makers of said note, assigned all his estate to the plaintiff for the benefit of creditors, and preferred him as to all demands against said Bigham, including the note in question, and that plaintiff accepted and received said assignment in full satisfaction and discharge of said note; that the assigned estate was of greater value than the amount of plaintiff's demands against said Bigham, including said note; that plaintiff disposed of a portion of said estate to pay and satisfy all said demands, including the note in question, and still retains in his hands and has converted to his use a sufficient part of said assigned estate to pay and satisfy same; that defendant was a surety of said Bigham on said note, which was known to plaintiff at the time of the assignment, and that said assignment was made and received with a view of discharging defendant from said note, and without defendant's knowledge, and in consideration thereof plaintiff agreed to discharge Bigham from said note. The defendant claims that this answer presents a counterclaim entitling him to the following affirmative relief, viz: Bates agt. Rosekrans. 1. To demand the surrender and cancellation of the note as paid. 2. To demand from the plaintiff, as trustee, an account of the fund and an appropriation of it to the payment of the note. 3. To demand a specific performance of the contract between Bigham and plaintiff. 4. To demand that upon payment of plaintiff's claim, defendant be subrogated to all the rights and securities of the plaintiff against Bigham. 5. To demand that the plaintiff first resort to the fund in his hands for the payment of the note, and an injunction restraining the collection of the note of defendant. 6. To demand that the assigned assets be marshaled so as to pay this debt and protect defendant. Assuming for the present that this answer might enable defendant to claim these various remedies or modes of relief, it is also obvious that the answer substantially sets up the defence of payment and satisfaction of the note : 1. By accepting an assignment of property sufficient for that purpose, for the express object and upon the express understanding so to apply it. 2. By receiving a fund dedicated to such a purpose, disposing of a part expressly for that purpose, and converting to his own use a sufficient portion of the residue to effect that object. 3. By receiving the assignment thus made with the view of discharging defendant from the note, and without defendant's knowledge agreeing to discharge Bigham therefrom. Here, then, in the view most favorable to defendant, was an answer susceptible of being construed to contain two defences-one of payment, the other requiring an account; the one requiring a reply, and the other not, in order to form an issue thereon. In which way was it to be construed? |