Bell v. Davis

8 Barb. 210

• Court: New York Supreme Court
• Decided: February 4, 1850
• Status: Published

Opinion

By the Court, Parker, J.

I see but one error committed on the trial in the county court, and that was in rejecting the evidence of a set-off. This decision is attempted to be sustained on the ground that the notice of set-off was insufficient. It is true the notice did not state that the demand sought to be set off was originally due to Jonathan T. Bell, and had become the property of the defendants, jointly, by assignment. But it was a general notice that the plaintiff was indebted to the defendants, with a statement of the nature of the indebtedness. The notice certainly covers the demand sought to be set off, though it does not give its history. In Covill v. Wright, (13 Wend. 403,) the supreme court held it was sufficient notice of set-off for the defendant to state, at the joining of issue, that he pleaded the general issue and gave notice of set-off, and claimed a balance of fifty dollars. That the plaintiff should object to the defence for want of certainty, and require a specification of the defendant’s claim, at the joining of issue, if he desired a more particular statement; and that if he did not so object, he could not subsequently, on the trial of the cause, object to evidence of set-off, on the ground that the nature of the claim had not been specified, at the joining of issue, with sufficient certainty.

No such objection was made at the joining of issue in this case; and the notice given, in stating generally the grounds of indebtedness, is more full and explicit than that which was held sufficient in the case of Covill v. Wright. It is enough if the claim offered is included within the notice given at the joining of issue.

The evidence offered was of a demand properly the subject of set-off. (2 R. S. 332, 3d ed.) If it belonged to the defendants jointly it made no difference whether one or both the defendants was the original creditor, or the assignee of the demand.

It is also argued that the assignment, being a transaction between the defendants, its date did not afford prima facie evidence that it was made before the commencement of the suit. This view might be presented with equal force, if the demand had been assigned to the defendants by a third person. The act of a third person, out of court, would be no more legal evidence than the act of the. defendants. The general rule is that the date is prima facie evidence; and I know of no exception to the rule when the instrument happens to be between the defendants. I think this position is not tenable. (2 Cowen & Hill’s Notes, 1453, and cases there-cited.) Besides, the objection made was to the admissibility of the evidence offered ; not to its sufficiency in establishing a claim. Th.e defendants’ counsel offered to prove the execution of the instrument, and if this was proper evidence towards proving the set-off, as far as it went, it should have been received; and if th.e defendants failed to introduce other necessary evidence to make out their defence, the court should have been called upon to decide that the evidence fell short of establishing a defence.

The judgment of the county court must be reversed with costs,, and a new ti;ial awarded.