Wright v. Smith.

ited, to accomplish the object, that the court have considered their duty resting in too much doubt to render them liable; or that the duty was not imposed at all, by an omission to give them the means necessary to accomplish the object."

It is clear that there is no sufficient allegation, in the first count, that the defendants had the requisite funds to repair the bridge; nor is there in the second count any averment that they had any funds whatever.

The only remaining question is, whether an averment of the possession of the requisite funds was necessary. I have already alluded to the rule that where a party seeks to recover damages of one for a breach of official duty, he must state enough to show a violation of such duty. That rule is applied by Chancellor Kent in the case of Bartlett v. Crozier, before the court for the correction of errors, (17 John. 457,) in clear and forcible terms. That was an action against an overseer of highways, for damages caused by his not repairing a bridge. The declaration did not allege that the defendant had the necessary funds. The chancellor said the obligation of the defendant, if any, "arose from the means which he had in his power and from which alone the law deduced his duty. But the declaration does not state the means, and therefore it lays no foundation for the duty. This objection strikes me as fatal. Nor will it be sufficient to say that the facts creating his duty must have been shown on the trial, and that we are now, after verdict, to presume so. The court are never to presume a cause of action, even after verdict, when none appears." It is a good rule that whatever is essential to sustain the action should be averred in the complaint. The reasons are too palpable to require any specification. Now it would not be enough for the plaintiff, in order to sustain his action in this case, to prove that the defendants were the commissioners of highways of their town; that the bridge was out of repair, and known to them to be so; that they had not repaired it, and that the plaintiff's horse had fallen through it, and been thereby greatly injured. He must have

The People v. McCumber.

gone further, and shown that they had the requisite public funds; and if he had failed to do so he would have failed in his suit.

I am satisfied that the learned judge who decided this case, at the special term, erred, and that his judgment should be reversed with costs, and a judgment rendered for the defendant, upon the demurrer. The plaintiff should be at liberty to amend his complaint within twenty days, upon the payment of the costs of the demurrer and the appeal.

[ORANGE GENERAL TERM, July 1, 1857. S. B. Strong, Birdseye and Emott, Justices.]

THE PEOPLE vs. McCUMBER and others.

A party may, in a proper case, combine several motions in one, and ask to have various defects remedied on a single application. Thus a plaintiff may, upon the same motion, move to strike out sham and impertinent matter from the answer, and for judgment on the expurgated answer as frivolous.

What statements in an answer will be struck out as sham, or irrelevant; and what defenses will be overruled as frivolous.

A party who has executed a bond as surety for a bank, and thus admitted its existence and covenanted for its faithful performance of its contract, is estopped from denying its existence, when sued upon the bond.

And where the principal does not take the objection, the surety is also estopped from denying his liability, after the principal has received the money of another, and the surety has covenanted for its payment to the owner. The canal board has power, it seems, to select the institution of an individual banker, as a place of deposit for canal tolls.

OTION for judgment for the plaintiff on account of the answer being sham and frivolous.

Lyman Tremain, attorney general, for the plaintiffs.

A. J. Parker, for the defendants.

HOGEBOOM, J. The language of the code, (sec. 152,) is without qualification that "sham and irrelevant answers and

The People v. McCumber

defenses may be stricken out on motion." It does not therefore seem proper to limit its application to answers and defenses setting up new matter. Nor would this accomplish the object doubtless intended by the legislature, to wit: to uproot defenses not resting on truth and good faith. Improper delays and contrivances to defeat justice may be as effectually carried out through the agency of pleadings containing mere denials of the plaintiffs' allegations as by those setting up affirmative defenses. The later decisions sustain this construction of the statute, and I am disposed to adopt it. (Conklin v. Vandervoort, 7 How. Pr. Rep. 483. Ostrom v. Bixby, 9 id. 57.. Stiles v. Comstock, 9 id. 48. Catlin v. Gunter, 1 Duer, 265. Manufacturers' Bank of Rochester v. Hitchcock, 14 How. 406.)

This power should, it is true, be cautiously exercised, for it disposes of the defendants' pleading in a very summary way, and may do him injustice, as it strikes his defense from the record. And yet if the answer, alleged to be sham, contain as it may, matter which if true would constitute a defense to the action, he may obtain redress on appeal to the general term, or failing there, to the court of appeals. (Code, § 349, 11.) If the answer does not involve the merits of the action, or affect a substantial right, it ought not to be permitted to stand. The policy of the code is to bring pleadings to the test of truth and substance. Hence sham and irrelevant defenses may be stricken out on motion. (§ 152.) Frivolous defenses may be overruled and judgment given in a summary way. (§ 247.) Irrelevant and redundant matter may be expurgated and indefinite and uncertain allegations may be compulsorily amended. (§ 160.) The object of all this is to present, for judicial examination simply the true and substantial issues between the parties. Nor do I see why, in a proper case, these several motions may not be combined in one, and the several defects remedied on a single application. There may be doubts under which section relief should be afforded, and so long as the nature and object of the motion are dis

The People v. McCumber.

tinctly stated, it may contribute to economy and expedition to connect together these various applications for relief. The party applying must take the hazard of having his motion denied, if he asks what ought not to be granted, and of being possibly subjected to costs if he asks too much. With these

restrictions the practice is not censurable.

In the present case the motion asks for two kinds of relief, viz: to strike out sham and irrelevant matters, and for judgment on the expurgated answer as frivolous. The action is to recover of the defendants, as sureties of the Chemung County Bank, moneys deposited in that bank for canal tolls. The answer sets up matter both in denial and avoidance. That in denial of the plaintiffs' allegations is claimed to be sham and irrelevant; and that in avoidance is claimed to be frivolous. It will be necessary to examine it in detail. Both the complaint and answer are verified; but it is to be observed in the first place that every allegation in the complaint is made upon actual knowledge, and every allegation of denial in the answer, with a single exception as to the delivery of the bond, is upon information and belief. In this form the defendants deny the designation of the bank to receive canal tolls, but it is recited in and admitted by the bond itself, and that is sufficient. They deny that they delivered the bond to the plaintiffs otherwise than by leaving it with their principal, Mr. Hastings. It should, I think, be inferred that this was for the purpose of being delivered to the plaintiffs. But aside from this, they expressly admit that they executed the bond; and in another place that they made the bond; and in still another that the plaintiffs took from them the bond. I think they have fairly nullified their own denial. They deny that it was executed or delivered in pursuance of any statute; but this is merely a denial of a legal conclusion. They deny that the bank has not rendered an account of all the moneys deposited therewith, but the breach counted on is that the bank has not accounted for and paid over all the moneys deposited therewith; and they admit that the bank has not paid over

The People v. McCumber.

all the toll moneys deposited in the bank, which is sufficient to entitle the plaintiff to recover; and the other allegation may be rejected as immaterial. I am inclined also to think that the averment in the complaint being absolute and unequivocal, and supported by an oath of positive knowledge; and that in the answer being merely on information sufficient to form a belief, the defendants were bound on a notice of motion to set aside the answer as sham, to support it by the oath of a party having knowledge. Indeed it may be questioned whether this is not one of those cases where the defendants were bound to seek for knowledge and learn the facts, if they wished to interpose a defense. (Hance v. Rumming, 1 Code R. N. S. 204. 2 E. D. Smith's Rep. 48. Chapman v. Palmer, 12 How. 38. Fales v. Hicks, id. 153.) But I do not put the decision on that ground, as I have not made up my mind to what precise extent such a rule should be applied. It is further to be observed that this particular denial is simply of information (and not also of knowledge) sufficient to form a belief, and is probably defective on that ground. (Edwards v. Lent, 8 How. 28. Code, § 149.) The defendants further deny that they have become liable to the plaintiffs for the moneys deposited, but this is not an issuable allegation. The same remark applies to the denial of the defendants' liability in another part of the answer, and also to the denial of the accruing of any cause of action.

They deny in the same way that the sum of money claimed, or any sum whatever, is due to the plaintiffs, and I should regard this as presenting a substantial issue, were it not reasonably obvious that it was intended as a mere denial of their legal liability. If intended otherwise it is only a denial on information and belief. And in a case where it is at least doubtful whether they must not be supposed to possess or were not bound to acquire positive knowledge, (see cases before cited,) and in a case too, where the verified allegation in the complaint is made on actual knowledge and supported by a positive affidavit, served with the notice of motion, and not met