New York Court of Appeals, 1886

Conselyea v. . Swift

New York Court of Appeals · Decided December 7, 1886 · Danforth

9 N.E. 489; 103 N.Y. 604; 4 N.Y. St. Rep. 278; 58 Sickels 604; 1886 N.Y. LEXIS 1098 (North Eastern Reporter)

Cases that cite this one

14 later published cases cite this decision.

Bell v. Grimstad (Mont. 1928)
In re Gedney's Wild (New York Surrogate's Court 1913)
Willis v. Holmes (Or. 1895)
De Vito v. Katsch (Appellate Division of the Supreme Court of New York 1990)
Salomon v. Fiske (Appellate Terms of the Supreme Court of New York 1912)
Phfee v. Dale (Appellate Terms of the Supreme Court of New York 1910)
In re the Probate of Will of Hopkins (Appellate Division of the Supreme Court of New York 1904)
Twelfth Ward Bank v. Brooks (Appellate Division of the Supreme Court of New York 1901)
Lange v. Garfunkel (Appellate Terms of the Supreme Court of New York 1898)
Auerbach v. Peetsch (New York Court of Common Pleas 1892)
Campanelli v. New York Central & Hudson River Railroad (Superior Court of Buffalo 1891)
Lake Ontario National Bank v. Judson (N.Y. 1890)
Colt v. Davis (New York Supreme Court 1888)
Plenty v. Rendle (New York Supreme Court 1887)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

*606 Danforth, J.

The complaint contains seven causes of action. As to the first six no question arises. The- seventh makes out a perfect case upon a promissory note against the defendant as indorser, and the answer denies none of the plaintiffs’ allegations, but sets up affirmatively that the defendant was an accommodation indorser and that the note was in fact paid out of moneys in the hands of the plaintiffs’ testator, applicable thereto. The defendant adds, upon information and belief, “ that the said plaintiffs are not the lawful owners and holders of said note, and that he is not indebted to them thereupon in any sum whatever.” This clause is relied upon by the respondents as an answer to the appeal. It is not sufficient. It is not a denial of ‘any averment. Neither of the facts so controverted are alleged in the complaint. It is merely an affirmative statement of a conclusion drawn from the preceding new matter in the answer, and while it might have been omitted as wholly unnecessary, it put in issue no part of the plaintiffs’case. The whole burden of proof lay upon thé defendant, and Without evidence the plaintiff was entitled to a verdict. (Fleischmann v. Stern, 90 N. Y. 110.) Defendant claimed on the trial that under the pleadings he had the right to open and close the case, but the court decided otherwise.

The learned counsel for the respondent has placed upon his points cases from the reports of other States. We do not refer to them, for our own Code upon this subject is very exjilicit and requires each material allegation in the complaint, not controverted by the answer, to be taken as true. (§ 522.) In this case, as before suggested, no allegation is denied. It was, therefore, for the defendant to establish the defense set up, and as he thus held the affirmative, he had the right to open and close the evidence, and the learned trial judge erred in ruling to the contrary.

The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to abide the event.

All concur, except Bugkeb, Ch. J., and Finch, J., not voting.

Judgment reversed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.