Harbeck v. Craft

11 Duer 122
The Superior Court of New York City·Decided December 23, 1854·Published

Opinion

By the Court.

Duer, J.

My brethren concur with me that the jury upon the evidence before them were properly instructed to find a verdict for the plaintiffs. There was no disputed fact, and the law upon the facts proved entitled the plaintiffs to recover.

It is not necessary now to decide whether the denial in a sworn answer of the reception by the defendant of a notice of protest satisfies the statute which requires the denial to be made in an affidavit. Certainly, such a denial has no proper place in an answer under the code, which should be confined to a denial or averment of those facts, and of those only which are necessary to be proved, in order to maintain the action or defence. The reception of such a notice, it is plain, is not an issuable fact, for the plaintiff is not bound to aver it, and when a due service of the notice is proved, whether it was received or not by the defendant, is quite immaterial. Hence, the denial of its reception, in an answer, might very properly be stricken out as irrelevant, and whether a denial that ought not to be found in his answer at all ought to avail the defendant for any purpose may certainly be doubted.

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Harbeck v. Craft, 11 Duer 122 (N.Y. Super. Ct. 1854).

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