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Temple agt. Murray and Ely.

commencement of this action, yet the defendants have not paid the same.

The plaintiff further alleges in his complaint that he is now the lawful owner and holder of said note, and that the defendants are justly indebted to him thereupon in the sum of $1000 principal, with interest from the 3d day of December 1851, and demands judgment for the same. The complaint is duly verified by the oath of the plaintiff.

The defendants put in their answer under oath, and allege in the commencement of it, “that they have not .sufficient knowledge or information to form a belief as to whether the said plaintiff is now the lawful owner and holder of said promissory note, mentioned in said complaint, therefore can not admit or deny the same.”

H. LATHROP, for Plaintiff.

L. E. Bowe, for Defendants. CRIPPEN, Justice.—This branch of the answer is a substantial compliance with the first subdivision of section 149 of the Code, and in its legal effect is a denial that the plaintiff was the lawful owner or holder of the note mentioned in the complaint.

The object of the pleader seems to have been to force the plaintiff to establish by proof on the trial, that he was the owner and holder of said note; or to make good by proof that allegation in the complaint. The making of the note is not denied by the answer, and therefore stands admitted. The plaintiff under the allegation of the answer, in order to sustain his action, must establish by proof his ownership of the note. This may probably be done by its production on the trial, on the ground that possession of it is prima facie evidence of ownership.

The ease with which the plaintiff may be able to establish his ownership of the note by proof on the trial, does not affect the question of the necessity of making such proof in order to establish the important fact, that he is the owner of it. If it was material for the plaintiff to allege ownership, in order to sustain his action, it is then quite clear that this branch of the answer is not immaterial or “ frivolous."

It casts the onus probandi on the plaintiff of proving his ownership of the note.

By the provisions of the Code, every action must now be prosecuted in the name of the real party in interest, except in cer

Temple agt. Murray and Ely.

tain specific cases, of which this action is not one (Code, şiil). When that question is raised by the answer, as I conceive it to be in this case, it is incumbent on the plaintiff to show prima facie at least, that he is the party in interest, or owner of the demand or note on which the action is founded. The note declared upon in this action is made payable at the Otsego County Bank to the order of the plaintiff, in the ordinary form of a note to be discounted at said bank. The defendants may have good reasons for believing that the note in fact is the property of the bank and not the property of the plaintiff, and therefore may properly raise that issue by the answer.

An answer which denies a material allegation of the complaint, can not be stricken out on motion, as “ frivolous" (Davis vs. Potter, 4 How. Pr. R. 155).

Justice Parker, in the case cited, very properly says that “ the general issue being abolished, the defendant instead of denying all, has denied one of the material allegations of the complaint, and he has a right to require that the issue thus joined shall be tried in the usual manner.”

The case of Beach vs. Gallup (2 Code R. 66), decides that the allegation in the complaint, that the plaintiff is the owner of the note, is a material allegation; and a demurrer to the complaint for the want of such allegation, was refused to be stricken out as frivolous, on a motion made for that purpose.

It has long been the settled practice of the Supreme Court, to strike out pleadings which were clearly “frivolous,” but the doctrine of the cases is that the court must be well satisfied that such pleading is clearly frivolous, and is interposed in bad faith for the purposes of delay or some other improper motive.

The answer in this action is verified by the oath of one of the defendants, and for ought that appears, was honestly and fairly interposed upon the record. Pleadings under the Code are to be liberally construed. In a case of doubt, the court will not adopt the stringent and summary mode of giving judgment by striking out a pleading as frivolous, under section 247 of the Code.

Having come to the conclusion that this notice can not be granted, it is unnecessary to examine or pass upon the other portions of the defendant's answer. Motion denied with costs.

Gale agt. Trustees of School District.

SUPREME COURT

THE PEOPLE ex rel. Gale, agt. The TRUSTEES OF SCHOOL DISTRICT

No. 13, in the towns of Busti and Harmony.

Where a collector of a school district is sued for acts done by him by virtue of

his office, and he has incurred expenses thereby; and has served upon the trustees of the district due notice of an application to the board of supervisors of the county, with a copy of his account, verified as required by the statute (Laws of 1847, p. 163, ch. 172, and amended by Laws of 1849, p. 545, ch. 388), and the board make an order for the payment of such expenses upon the district, the trustees not appearing on the application; a mandamus will issue to compel the execution of such order, notwithstanding it may appear that the claim never was laid before or passed upon by the taxable inhabitants of the district, as required by the 1st section of the aforesaid act (1849).

Chautauque Circuit and Special Term, September 1851. The moving papers show that from January to 10th September 1850, the relator was collector of the school district No. 13, in the towns of Busti and Harmony, in Chautauque county, during which time he was sued for acts done in his official capacity as such collector, and was put to great costs and expenses in defending the suits.

That on the 11th day of December 1850, in pursuance of the act in relation to suits against district school officers, passed May 1st, 1847, he made application to the board of supervisors of said county for an order requiring the payment of such costs and expenses by said school district, having given the trustees due notice of the application, as required by said act. That such proceed ings were thereupon had, that on the said 11th December 1850 an order was made and entered in the minutes of the board of supervisors at a legal meeting thereof, in the words and figures following, viz:

At a meeting of the board of supervisors of Chautauque county, held at the court house in Mayville, on the 11th day of December 1850, the following order was, by a majority of all the members elected thereunto, made and entered in the minutes of proceedings of said board, viz: “It is hereby ordered by the board of

Gale agt. Trustees of School District.

supervisors of Chautauque county, that the account of Seymour Gale against school district No. 13, in the towns of Busti and Harmony, to the amount of twenty-six dollars and fifty-six cents, it being for costs, charges and expenses paid by said Gale in defending three several suits brought against him in his official capacity as collector of said district, be paid to him by such district. Dated Mayville, Dec'r 11, 1850.

R. E. FENTON, Ch’n of Board. CHARLES CHADWICK, Clerk of Board.

That on the 25th day of December 1850, the relator served a certified copy of such order on Eleazer Green, William Clark and William Kelso, who were then the trustees of said district. That more than thirty days have elapsed, and that the trustees have neglected and refused to issue their warrant to collect the amount so directed to be paid. That on the 9th September 1851, the term of office of said William Kelso expired, and John Kent was elected in his place.

The opposing affidavits show that when the relator served upon the trustees notice of his application to the board of

supervisors for the order above set forth, with the amount of costs, charges and expenses claimed to have been paid by him, the trustees were told by the relator that one Norton was employed by him to present the application to the supervisors, and that Norton upon being referred to the acts of 1847 and 1849, on the subject, and being informed that the relator's claim had not been passed upon by the taxable inhabitants of the district, stated that the supervisors had nothing to do with the matter; and that the trustees therefore neglected to appear before the board to oppose it, believing from what passed between them and Norton, that the application would not be presented. The affidavits show that the claim never was, in fact, laid before or passed upon by the taxable inhabitants of the district, and state some other matters tending to impeach the justice and legality of some portion of the relator's claim. It appeared that the trustees had due notice of the application to the board of supervisors, and a copy of the relator's account verified according to the statute was served upon the trustees at the same time. The relator asks for a mandamus Gale agt. Trustees of School District. commanding the trustees to issue their warrant for the collection of the money as directed by the board of supervisors.

AUSTIN SMITH, for the Relator.
A. HAZELTINE, for the Trustees.

Welles, Justice.—The law upon which the order of the board of supervisors was founded, is ch. 172 of Laws of 1847 (p. 163), as amended by ch.388 of Laws of 1849 (p.545). The first section of the first mentioned act makes it the duty of the trustees in certain cases to ascertain the actual amount of costs, charges and expenses paid by any officer of a school district in case of a suit commenced against him for an act performed by virtue or under color of his office, and to cause the same to be collected of the district, and paid to such officer.

The mode of ascertaining the amount is directed in the second and third sections of the act, which is by the claimant applying to the board of supervisors, after notice to the trustees, and service of a copy of the account duly verified.

The fourth section requires the trustees to issue their warrant for the collection of the amount directed by the supervisors to be paid, &c.

The act of 1849 merely substitutes an amended section in place of the first section of the act of 1847; and the only difference I can perceive between the original and amended sections is that by the latter, the trustees are not to take any action towards ascertaining the amount of the claim, unless a majority of the taxable inhabitants of the district shall first so determine.

In the present case, it is shown on the part of the defendants, that this claim has never been laid before or acted upon by the taxable inhabitants of the district, nor have they made any determination on the subject. But it is also shown that the relator gave due notice of the application to the board of supervisors, with a copy of the account sworn to as provided in the second section of the act. The act does not require the claimant to prove before the board that the taxable inhabitants have determined upon the allowance of the claim, or that any proceedings have been had by or before them on the subject of the claim. On

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