;;\: :
I:;
<{ :. ,.
:
'
FEDERAL REPORTER,
vol. 39.
F ABRIe FIRE
HOSE
Co. v.
BIBB MANUF'G
Co.
(Oircuit Court,
S. D.
Nw York.
June 5, 1889.)
PLEADING-ANSWER-MOTION TO STRIKE OUT.
In an action for the price of corporate stock sold by plaiutiff to defendant the defense that plaintiff agreed to deliver stock of a certain kind, which he has not done and cannot do, may be made under a general denial, and a paragraph of the answer setting up those facts will be stricken out.
At Law. On motion to strike out. Alfred Ely, for plaintiff. D. M. Porter, for defendant. LACOMBE, J. The plaintiff moves to strike out the second paragraph of defendant's answer to the amended complaint as irrelevant, false, and sham, or that said paragraph be made more definite and certain by stltting and alleging therein the date when the special statute relerred to in such paragraph waf; enacted and approved, together with the title to the said act. Upon the hearing an amendment making such paragraph more definite and certain, by inserting such date and title, was ordered, and the answer amended in open court. The plaintiff also moves that the third paragraph of defendant's said answer be stricken out as irrelevant, hypothetical, and sham. Such paragraph is as follows: "Thi·rd. For a third defense the 'defendant avers, upon information and belief, that if the contract alleged to have been made between the parties to this action was made by and entf'red into between them, that it was and is a part of. the allf'ged contract that the plaintiff should deliver to the defendant stock fully paid up and stock upon which this, defendant conld not in any way be liable except for the wages of employes, and that at the time the allcg-ell contract is alleged to have been entered into the plaintiff was not and has not at any time since been able to deliver atiy such stock to this defendant, but has made default and has thereby broken its contract." The motion to strike out this paragraph is granted. Upon the argument, defendant's counsel insisted that without it he could not avail of the defense that the plaintiff had not correctly set forth the alleged contract whose making even was contested by the defendant. There seems to be no ground for any such apprehension. Plaintiff can recover only seC'ltndum allegata et probata. It must show the making of a contract such as it has set forth in the limended complaint, and fulfillment of such contract (or readiness to fulfill) upon its part. If the contract between the parties provided for the deli very of full paid-up stock, that fact will appear when the contract is proved; and if the stock which plaintiff has tendered is not the kind of stock which the contract provided for, such tender will not be a compliance with its terms. Under the general denial, therefore, which puts in issue the making of the contract and its fulfillment by plaintiff, the defendant can avail of the detEmse set out in the third paragraph, if there be such a defense, quite as well as if the same were expressly pleaded.
IN RE
In
reMURNANE
et q,l.
(Circuit Court, S.
n.
New York. April 18,1889.)
IMMIGRATION-BoARD OF COMMISSIOKERS-DELEGATION OF POWERS.
The board of commissioners of emigration. who by act Congo AuI\'. 3, 1882, Rre required to examine into the condition of immigrants, cannot delegate to a committee the power to determine whether such immigrants shall be permitted to land.
Habeas Corpus for the release of detained immigrants. Alfred Steckler, for petitioners. KeUy&Macrae, for Board of Emigration Commissioners. Abram J. Rose, Asst. U. S. Atty., for Collector. LACOMBE, J., (orally.) The return presented by the commissioners of emigration in this case was prepared so as to state a legal conclusion, it being contended in their behalf that the action of the Castle Garden committee, to whom by resolution they have undertaken to delegate their powers, is of the same legal effect as would be the action of the commissioners themselves. Their counsel, however, in open court, concedes that, except so far as said CasUe Garden committee has taken action in regard to these immigrantf', there has been no action had by the board of commissioners of emigration. That board, in iact, have not had a meeting since the arrival of relators, on April 10th. The next regular meeting day will be April 25th. Attention has been called to the decision of Judge BROW:';' in Be Brac'IIladfar, 37 Fed. Rep. 774. There, however, the prespnt point was neither raised nor argued, and the suggestion at the close of the memorandum is wholly obiter. The second section of the act of August 3, 1882, requires the determination as to the condition of immigrants to be had by the board of and assisting them to commissioners. For the purpose of make such examination, they are authorized, either individually or through persons whom they may appoint, to go on board any ship or vessel bringing immigrants to this port, but this permission is not to be construed as authorizing them to delegate to any persons other than themselves the important functions-quasi judicial in their characterwhich are by that act confided to them. Of course, a reasonable time should be allowed the commissioners of emigration to examine into the iilcts, which they may gather either by their own observation as a body, or by their individual exertions, or frum the reports made to them by the agents they may employ. It is hard to say in advance what in each particular instance should be considered a reasonable time, but in view of the fact that their action in this particular case has been framed to meet the suggestion contained in the case above cited, and that a meeting of the commissioners at which action can be had will take place within a week, and that their agents have already reported to them adversely to the application of the relators in this case, a delay until the