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Drake v. Cockroft, 1 Abb. Pr., 203.

the action, be taken as true" (§ 522). Here the complaint stated a clear cause of action, and under the pleadings the plaintiffs were not required to prove anything, nor was the defendant at liberty either to deny the existence of the facts constituting the cause of action, or to prove any state of facts inconsistent with such admission. (Tell v. Beyer, 38 N. Y., 161.) It is true that the agreement set up in the answer as the one by which the plaintiffs acquired the note is different from the one stated for that purpose in the complaint, but that is not enough to put the latter in issue (West v. American Exchange Bank, 44 Barb., 175; Marston v. Swett, 66 N. Y., 206, 210; 23 Am. Rep., 43), and so it was thought at the trial. The defendant took the burden upon himself, and if we now assume, with the appellant's counsel, that the evidence given established the agreement stated by the answer, it could not help defendant, nor enable him to avoid the effect of an omission to controvert by answer the plaintiffs' allegations. The Code (§ 522, supra) gives to such omission the force of a formal admission and makes it conclusive as such upon the parties and upon the court. (Paige v. Willett, 38 N. Y., 28; Tell v. Beyer, supra.)

[The remainder of the opinion, however, reviewed the evidence and held that the defence, even if receivable, could not prevail.] All the judges concurred, except MILLER, J., absent. Judgment accordingly.

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DRAKE v. COCKROFT.

New York Common Pleas, General Term, 1855.

[Reported in 1 Abb. Pr., 203.]

1. When the facts stated in a complaint show the plaintiff entitled to recover the amount demanded, an answer, which does not deny any fact alleged in the complaint, but merely says "the defendant denies that the said plaintiff is entitled to the money demanded," presents no defence.

2. If the allegations of the plaintiff are sufficient in law to entitle him to recover, the defendant cannot dispute the right of recovery while he admits the facts stated, unless he avers new facts which defeat their otherwise legal operation.

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Drake v. Cockroft, 1 Abb. Pr., 203.

Motion to strike out part of an answer.

WOODRUFF, J. The complaint herein avers that the plaintiff, on, etc., let the defendant, and the defendant hired and took from the plaintiff, certain premises for the term of one year, from the first of May then next, at the yearly rent of $925, payable as follows: $308.33 on the first day of August, 1853; $308.33 on the first of November, 1853, and the balance, $308.34, on the first day of February, 1854.

After setting forth other provisions of the lease not material 2 to this appeal, the complaint further avers that the defendant promised to make punctual payment of the said rent in the manner above mentioned and that the defendant entered into possession of the demised premises under and by virtue of the said hiring, and continued in the possession, etc., until after the first day of February, 1854. That on the first day of August, 1853, the said sum of $308.33 became due and payable according to the tenor of the said letting and hiring, and that the sum of $8.33 thereof is now due and owing. That on the first of November, 1853, the other sum of $308.33 became due and payable according to the tenor, etc., and that the sum of $8.33 is now due and owing, and the said balance of $308.34 became due and payable on the first day of February, 1854, and the whole thereof is now due and payable. Whereupon the plaintiff demands judgment for $325, and interest and costs. To which complaint the defendant by answer sets up or attempts to set up three distinct defences.

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For a first and distinct defence, the defendant answers that he "denies that the said plaintiff is entitled to the sum of money 4 demanded in this action or any part thereof."

Reading this supposed "defence" in connection with the legal principle that "every material allegation in the complaint which is not controverted by the answer, shall be taken as true for the purpose of the action," this so called defence amounts to this: "Although I hired the plaintiff's premises for the period stated, and agreed to pay the rent specified, and occupied the premises during the term, and the rent became due and payable according to the tenor of the hiring, and is now due and owing, still the plaintiff is not entitled to such rent." Or in another form,

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Drake v. Cockroft, 1 Abb. Pr., 203.

Although all the facts alleged by the plaintiff are true, still he 5 is not entitled to recover."

I fully concur with the opinion of the first judge at special term that this is no defence at all. If the facts stated by the plaintiff are true, the plaintiff is entitled to the sum of money demanded, and this so called first defence is a mere legal falsehood, unless other facts exist which are not stated.

I need not state in the elementary rule of pleading, that a plea or answer which does not deny the facts alleged by the plaintiff must state facts, which, if proved, destroy the legal inference that the plaintiff is entitled to recover. If the allegagations of the plaintiff are sufficient in law to entitle him to recover, the defendant cannot dispute the right of recovery while he admits the facts stated, unless he avers new facts which defeat their otherwise legal operation.

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The defendant's counsel on the argument of the appeal, insists that a denial of the plaintiff's right to recover, or a statement that the plaintiff is not entitled to the money, is a statement of a fact. In this I apprehend he overlooks the distinction which often exists between the statement of a truth, and the allegation 7 of a fact. Indeed the terms fact and truth are often used in common parlance as synonymous; but as employed in reference to pleading, they are widely different. A fact, in pleading, is a circumstance, act, event or incident; a truth, is the legal principle which declares or governs the facts and their operation and effect.

Admitting the facts stated in a complaint, the truth may be that the plaintiff is not entitled, upon the face of his complaint, to what he claims. The mode in which a defendant sets up that truth for his protection is a demurrer.

So also, admitting the facts stated in the complaint, the truth may still be that by reason of the existence of facts which are not disclosed by the complaint, the plaintiff is not entitled to what he claims. If a defendant wishes to urge this condition of things, he must do it by averring the existence of those facts.

It seemed to me so obvious that this denial of the plaintiff's title to recover, contains nothing which can be called a statement of a fact, that no language could make it more plain; but counsel

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9 for the appellant have deemed it doubtful, and pressed it upon our further consideration. The case cited by him (Allen v. Patterson, 7 N. Y., 476; s. c., p. 1 of this vol.) does not even tend to sustain such an answer. An averment in a complaint, that the defendant was indebted to the plaintiff for goods sold and delivered by the plaintiff to the defendant, at his request, on a day named, and at a place stated, and that a sum named is due to the plaintiff from the defendant, was held to import, and therefore in substance to be an averment, that at the time and place stated the plaintiff sold and delivered to the defendant the goods referred to, and the court in that case distinctly recognized the duty of a pleader distinctly to aver or state every fact on which he relies to support the legal proposition upon which his right to maintain or defend the suit is dependent.

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[The judge then discussed a claim for damages suffered by defendant by reason of plaintiff's taking of personal property of defendant, and which was held to have been improperly interposed as a counterclaim.]

In my opinion the order striking out what are termed in the 11 answer the first and second defences, should be affirmed.

In Wesson v. Judd, 1 Abb. Pr., 254, plaintiff sued on an undertaking given to secure a discharge from arrest, setting forth a copy of such undertaking. The answer admitted that the defendant had given a writing, but denied, for want of sufficient information to form a belief, that the writing was correctly set forth in the complaint.-Held, that such part of the answer must be stricken out; that defendant is entitled to an inspection of the original to enable him to answer, and cannot deny, merely upon want of information sufficient to form a belief, that the instrument is correctly set forth.

THOMPSON v. ERIE RAILWAY CO.

New York Court of Appeals, 1871.

[Reported in 45 N. Y., 468.]

1. A verified denial, whether general or specific, traversing a material allegation, cannot, upon affidavits showing falsity, be stricken out on motion as sham, for this would be trying an issue on ex parte affidavits instead of by common law evidence.

Thompson v. Erie Railway Co., 45 N. Y., 468.

2. This rule is applicable, whether the action be of a legal or equitable nature.

3. A general denial of a part of a complaint which averred several material facts, cannot be stricken out as sham on the ground that it is necessarily a negative pregnant.

4. An allegation in an answer relied on as a defence, if so wholly immaterial as to be of no avail, may, even though true, be struck out on motion as irrelevant.

5. Section 247 of the Code of Procedure [Code Civ. Pro., § 537] gives no power to order judgment upon one of several defences in an answer as frivolous, where others are good.

6. But if a notice of a motion for judgment for frivolousness, contains a prayer for "other or further relief," the irrelevant defence may be stricken out as irrelevant [Code Civ. Pro., § 153; Code Civ. Pro., § 538]. 7. The common stockholders may be proper, but are not necessary, parties to an action by preferred stockholders to compel payment of a dividend to them, in the absence of anything to show that the directors will not properly defend the action.

John W. Thompson, for himself and other owners of preferred 1 stock in the defendant company, sued to compel the company to pay a dividend on the preferred stock pursuant to the agreement under which it had been issued, and to have an accounting and receiver as to net earnings applicable to such dividend.

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John W. Thompson, Mary T. DeForest, James Thompson and Rhoda Thompson, in their own behalf, and in behalf of all other holders of the preferred stock of the Erie Railway Company, etc.,

against

The Erie Railway Company.

"The above-named plaintiffs, complaining on behalf of themselves and all other owners and holders of the preferred stock of the said defendant, who shall come in in due time and seek relief by and contribute to the expenses of this action, allege:

"I. That the question which is the subject of this action is

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