Commissioners of Excise v. Hollister.

THE BOARD OF COMMISSIONERS OF EXCISE OF THE CITY AND COUNTY OF NEW YORK v. DAVID M. HOLLISTER.

A judgment obtained by default, and through inadvertence on the part of the defendant, will be opened, and a defence permitted, where he excuses his neglect and swears to merits.

Upon a motion for that purpose, where the defence is disclosed, and it appears that it is intended to be interposed in good faith, and is not clearly unjust or frivolous, the court will not decide whether it will prevail if established upon a formal trial of the action.

AT SPECIAL TERM, April 2, 1860.

Motion to open a judgment entered by default, and for leave to the defendant to answer. The action was to recover of the defendant the penalties imposed by law for selling liquors, in quantities less than five gallons at a time, without a license. In addition to the usual affidavit of merits, the defendant read, upon the motion, an affidavit excusing his neglect, and stated in it that his business consisted in part of selling liquors in large quantities; that he did, at times, sell wines-such as champagne, &c.— by the basket, but never sold less than five gallons in the aggregate to any one person, although that quantity was often composed of different kinds of wines or liquors, each kind being less than five gallons. It was contended, on the part of the plaintiffs, that this was a violation of the excise law, and therefore the affidavit disclosed no defence to the action.

John H. White, for the motion.

John B. Holmes and William McKeag, opposed.

HILTON, J.-Upon a motion to open a judgment entered against a defendant by default, and through his inadvertence, we do not determine absolutely whether the defence he desires to interpose will necessarily prevail at the trial, but merely look into it so far as to be able to say that it is not clearly frivolous;

Reed v. Butler.

and then if, in addition, we are satisfied that it is set up in good faith, and the neglect of the party is satisfactorily excused, it is almost a matter of course to permit him to come in and

answer.

I see no reason for departing from this general practice in the present case, and therefore must decline passing upon the defence disclosed in the motion papers, as requested by the plaintiff's counsel, and content myself with merely saying that, in my opinion, the defence is clearly not frivolous.

The motion, therefore, to vacate the judgment, and for leave to answer, is granted on payment of $10 costs of the motion, and the disbursements in entering the judgment.

Ordered accordingly.

RICHARD REED, RECEIVER, &c. v. THOMAS BUTLER AND HARRIET E. BUTLER.

In an action against husband and wife, where her interest is separate and distinct from her husband's, a joint answer must be verified by both.

A joint answer of several defendants, who are not united in interest, must be verified by all.

AT SPECIAL TERM, April 2, 1860.

Motion to strike out a joint answer of husband and wife, for want of a sufficient verification. The action was brought by the plaintiff as receiver appointed in supplementary proceedings instituted by a judgment creditor of the defendant, Thomas Butler, to set aside a conveyance of certain property to the defendant Harriet, his wife, on the ground that it was purchased and paid for by him and with his money, and therefore the conveyance to the wife was void as to his creditors. The complaint was verified. The defendants answered jointly, denying that the

Reed v. Butler.

property was purchased and paid for by the husband, and claiming the property as the separate estate of the wife, and she alone verified the answer.

F. II. B. Bryan & Francis S. Bryan, for the motion, cited Leavitt v. Cruger, 1 Paige, 421; Hilton v. Bennett, 4 Simons, 17; 2 Barb. Ch. Pr. 88, 89, 150, 151, 152; Perine v. Swaine, 1 John. Ch. R. 24; Chemical Co. v. Flowers, 6 Paige, 654; Andrews v. Storms, 5 Sandf. S. C. 609; Youngs v. Seely, 12 How. 395.

Miller, Peel & Nichols, opposed.

DALY, First Judge.--The answer is not sufficiently verified. It purports to be the joint answer of both defendants, who are husband and wife, and is verified by the wife alone. If it is relied upon as the answer of both, it must be verified by both, because they are not united in interest, which is the only case under the Code where a joint answer can be verified by one of the parties only. If the conveyance by Howland to Mrs. Butler is valid, the land is her separate estate, which she has a right to dispose of independently of her husband. The action in that case would have to be dismissed, and her interest, upon that question, is separate and distinct from that which her husband has in the action. Youngs v. Seely and wife, 12 How. 395; Andrews v. Storms, 5 Sandf. 609. If the conveyance to her is held to be fraudulent, then she has no further interest in the action, as the relief asked for in that event, is that the land, or so much of it as may be necessary, be sold and applied to the payment of the judgment against Butler, a matter in which he alone has an interest. This motion, therefore, must be granted, with liberty to Mrs. Butler to put in a separate answer if she is so advised, or a joint answer verified by both defendants, upon the payment of $10 costs of this motion.

Ordered accordingly.

Chambers v. Lewis.

THOMAS CHAMBERS v. GEORGE LEWIS.

Where property has been wrongfully taken or detained, the owner may waive the tort and sue upon an implied promise to pay.

Formerly the tort was waived by bringing an action in assumpsit, but under the present system of pleading, the character of the action, and whether or not the tort is waived, must be determined by the facts stated in the complaint.

If, upon the facts so stated as constituting the cause of action, the plaintiff would be entitled to an order for the arrest of the defendant, the action will be considered as one founded in tort.

It seems that the demand for judgment in the complaint, and also the summons, may be referred to for the purpose of determining the character of the action brought.

A counter claim founded on contract cannot be interposed as a defence to an action to recover for property wrongfully taken and converted.

AT SPECIAL TERM, April 3, 1860.

Demurrer, by the plaintiff, to a counter claim set up in the defendant's answer. The complaint was in the following form: The plaintiff shows unto the court that on the 30th day of March, 1859, at the city of New York, the plaintiff possessed and owned certain merchandise, consisting of four barrels of soap stone, of the value of twenty dollars; thirty-four barrels of red stone, of the value of one hundred and twenty dollars; and a large quantity of vulcanized gutta percha belting, of the value of five hundred dollars. That the defendant, on or about the day and year, and at the place last mentioned, obtained the said merchandise, and wrongfully converted the same to his own use. That the plaintiff has demanded the same of the defendant before the commencement of this action, to wit: on the 12th day of April, 1859, at the city of New York, and the defendant then and there refused to deliver the said merchandise to the plaintiff. Wherefore the plaintiff demands judgment against the said defendant for six hundred and forty dollars, with interest from the 12th day of April, 1859, and the costs of this action.

The answer commenced with a denial that the property men.

Chambers v. Lewis.

tioned in the complaint was in the possession of or owned by the plaintiff, as alleged, or that the defendant ever wrongfully converted it to his use. It then averred that the property belonged to the United States Vulcanized Gutta Percha Belting and Packing Company, and stated facts showing that the defendant was not in any way responsible for it. As a further answer, it was alleged that the defendant became possessed of the property under a valid purchase of it. Also, by way of counter claim, it was averred that the plaintiff was a stockholder, member and trustee of the Gutta Percha Company, a corporation created for manufacturing purposes under the laws of this state, and on and for some time prior to February 1st, 1859, was president thereof; that Augustus Cleveland recovered a judgment in the Marine Court, on March 15, 1859, against the company, for rent due February 1st, 1859; that the judgment had been docketed in the office of the county clerk, and an execution issued out of this court thereon had been returned unsatisfied, and the sum of $396.61, with interest, was due, and that the judgment was, on May 2, 1859, duly assigned to the defendant for a valu. able consideration; that the certificate of incorporation of the company was filed in the clerk's office of Queen's county, by which the capital stock was fixed at $100,000; and the defendant alleged that the whole thereof had never been paid in; also, that the report required by law had never been filed; also, that with the assent of the plaintiff, as such trustee, the company had become indebted to various persons in an amount exceeding its capital; and therefore as stockholder, and also as trustee, the plaintiff was liable for the debts of the company, and is liable to pay the defendant the amount of the judgment.

The plaintiff demurred to so much of the answer of the defendant as alleged a counter claim against the plaintiff, because: 1st. The same does not state facts sufficient to constitute a cause of action in favor of said defendant against this plaintiff. 2d. The same does not state facts sufficient to constitute a cause of action by way of counter claim, in favor of said defendant against said plaintiff.