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19 A.D. 538

Janes v. Saunders

Appellate Division of the Supreme Court of the State of New York

Decided July 15, 1897

Appellate Division of the Supreme Court of the State of New York · decided 1897-07-15

Appeal, by the defendant, James Saunders, from aft interlocutory judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 21st day ¡ of December, 1897, upon the decision of the court rendered after a; trial at the Albany Special Term, sustaining the plaintiff’s demurrer to the second -defense set up in the defendant’s answer; ' This action was commenced December 2, 1893.

Relies on Long v. . Mayor, Etc., of City of New York

Decided 1897-07-15

Merwin, J.:

¶1The claim of the defendant is, that the paragraph of the- answer demurred to contains a statement of new matter constituting a defense to the action. The argument seems to be that, if the facts alleged in the second defense are true, the plaintiff is not the owner of, or has not the title to, the claim or debt sued on.

¶2When ¡the answer demurred to contains' no denial of the allegaitions of the complaint, but sets up new matter, the court, in considering the demurrer, will treat the' allegations in each pleading as true. (Long v. Mayor, etc., 81 N. Y. 427; ’ Wiley v. Village of Rouse's Point, 86.Hun, 495.)

¶3We, therefore, must assume, that, at some - date before the commencement of the action, Shank being the owner of a debt against defendant for $550, assigned it to F. H. Janes in payment of a debt he owed to Janes for work, 'labor and services and materials furnished.

¶4The defense demurred to. .relates to an instrument dated May 17, 1893, between Shank and F. H. Janes, of an executory character, and we may assume that it is, in effect, alleged that that instrument was subsequently canceled as ’between Shank and F. H. Janes. There is, however, no allegation that the- instrument of May 17, *5411893, is a part of plaintiff’s title, or has anything to do with the claim she sues on. It is entirely different in its character from the assignment which she alleges from Shank to F. H. Janes, .and we have, I think, no right to assume that they refer to the same .transaction in the absence of appropriate allegation to that effect. (Dechert v. Municipal Electric Light Co., 84 Hun, 575.)

¶5It may be that if the assignment from Shank to F. H. Janes, through which the plaintiff claims title, was, before the assignment to plaintiff, in effect abrogated or nullified so that no title passed to plaintiff, the defendant could defend on that line. That question, however, is not here.

¶6All of the allegations of fact in the answer may be true, and still . the absolute transfer, made by Shank to F. H. Janes in payment of a debt then existing from Shank to Janes as alleged in the complaint, may be still in full force and effect.

¶7It follows that the demurrer was properly sustained.

¶8All concurred.

¶9Interlocutory judgment affirmed, with costs, with leave to amend upon payment of costs of demurrer and of appeal.

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