Dennison v. Carnahan

1 E.D. Smith 144

• Court: New York Court of Common Pleas
• Decided: February 15, 1851
• Status: Published

Opinion

By the Court. Ingraham, First J.

The contract between these parties, to be valid under the statute, must have been signed by the party sought to be charged therewith. There is no pretence in this case that the memorandum in the broker’s book was so signed by the defendant, either in person or by agent, and without such signature it could not be enforced against him.

A general'denial in an answer is provided for in the 64th section, but this does not mean a denial of knowledge sufficient to form a belief. The pleadings in these courts are not sworn to, and are not to be in any particular form, other than that directed in the 3d and 4th subdivisions of that section. An answer may contain a general denial of the complaint, but there is no provision applicable to these courts which requires the plaintiff to prove all his complaint on an answer averring merely want of knowledge. That rule is applicable only to actions in courts of record.

We have heretofore held, that the provision in the code as to admissions in the complaint for want of a denial in the answer, applies to these courts. (McKee, v. Oakley, October 7, 1849.)

The allegation of delivery of part of the goods is made in the complaint, and is not denied; and being material, is therefore admitted. This, with the testimony relating to this part of the case, is sufficient to show a delivery within the meaning of the statute.

The delivery intended by the statute refers to the goods contracted for, or the money to be paid ; it is immaterial which. Any part performance of such a contract by either party takes it out of the statute and makes it valid, so that it can be enforced by either party.

Applying these rules to the matters returned by the court below, there was sufficient evidence to sustain the finding of the justice, and the other points taken by the defendant are not sufficient to demand a reversal of the judgment.

The justice’s return is made by altering the appellant’s affidavit. We have heretofore expressed our disapproval of this course, but as this return was made before January term, we do not apply the rule there intimated to this case.

(a)

Judgment affirmed.

Note by Reporter.—The rule referred to, and which is still in force, is to the effect that this court will dismiss an appeal from a court below, at once, for irregularity, when the return is merely an altered adaptation of the appellant’s affidavit.