Cohen v. Wolff

The suit was brought by an alleged assignee of Cowen’s, Inc., a domestic corporation, upon a claim for goods sold and delivered.

On the trial plaintiff’s counsel, for the purpose of proving the assignment pleaded, asked the witness Cowen if he had assigned on behalf of the corporation the claim against the defendant, to which he answered, “Yes.” This witness subsequently said that the assign*413ment was in writing, but the writing was not produced, and although it is stated at the end of the stenographer’s minutes of the trial “ that subsequently the assignment in question was mailed to the court and put among the papers ” no such paper is included in the return. It does not appear that Cowen, who said he executed the assignment, was an officer of the cor-' poration or in any way authorized to execute the assignment, and it was not proved that the assignment was in existence at the time of the beginning of the action. When asked when the assignment was made the same witness said: “ I think it was about sometime in November, about the day prior to the commencement of the action.” The proof was insufficient to establish ownership in the plaintiff at the time of the commencement of the action. Liberty W. P. Co. v. Stoner W. P. Mfg. Co., 178 N. Y. 219. There is nothing in the return which would estop Cowen’s, Inc., from suing the defendant on the claim. Bernstein v. Horth, 85 N. Y. Supp. 263.

It is contended on the appeal, however, that the answer did not deny the assignment and therefore the fact as alleged was admitted. Paragraph third of the complaint contains the single allegation of the assignment. The defendant “ answering the complaint ” denied, among other things, that he had “ any knowledge or information sufficient to form a belief as to the paragraph marked third.” ■ While the form of denial is loose and inartificial and is not to be commended, it seems to me that in view of the single, definite allegation of paragraph third the denial was sufficient to require the plaintiff to prove the assignment. This was apparently the view taken by plaintiff’s counsel at the trial; as far as appears he never challenged the sufficiency of the denial. In Bidwell v. Overton, 13 N. Y. Supp. 274, cited by the respondent, *414the pleader merely averred that he had not knowledge or information sufficient to form a belief as to a specified paragraph of the complaint. Here the defendant denies that he has any knowledge or information sufficient to form a belief as to the paragraph in question.

Pendleton and Shearn, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.