Hamilton v. Hough

13 How. Pr. 14

• Court: New York Supreme Court
• Decided: April 15, 1856
• Status: Published

Opinion

Harris, Justice.

Those portions of the answer which are embraced in this motion, contain nothing which even purports to amount to a defence. No allegation in the complaint is denied—no new matter is alleged. In the second defence, the defendant says, in substance, if the goods were sold and delivered, they have been paid for. There is nothing that amounts either to a denial of the sale and delivery, or an allegation of payment. It is a mere attempt at hypothetical pleading. The defendant asserts that no goods were sold which have not been paid for. In other words, he says, “I will neither admit nor deny the sale; but this I say, that if the plaintiff shall prove the sale, then I will undertake to prove payment.” It needs no argument to show that such pleading is unauthorized.

The third defence is still more palpably defective. There the defendant says, in terms, that if the plaintiff shall prove a sale, he, the defendant, will prove that the term of credit upon which the sale was made, has not expired. No allegation is denied. No new matter is alleged. Of course, no issue is tendered.

The motion must be granted. There will be enough left in the answer to put the plaintiff to the proof of his case. It is unnecessary, therefore, to provide for an amendment. The plaintiff is also entitled to the costs of the motion.