Kraus v. Agnew

80 N.Y.S. 518

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1903
• Status: Published

Opinions

INGRAHAM, J.

The complaint alleges that in and about the month of November, igoi, the plaintiff and the defendant entered into an agreement whereby the defendant employed the plaintiff to perform certain work, labor, and services for him in procuring one Charles H. Unverzagt to become interested as a promoter in the formation of a corporation, and for such work, labor, and services the defendant promised and agreed to pay the plaintiff the sum of $5,000. The answer denies each and every allegation of the complaint; and for a further and separate defense alleges, upon information and belief, “that all the alleged services mentioned and referred to in the complaint herein were and each of them was rendered to one Charles H. Unverzagt, and at his special instance and request, and not at the instance and request of this defendant.” This defense was demurred to, and the demurrer sustained.

The complaint alleges but one agreement upon which the plaintiff’s cause of action is based. While the defendant could prove the facts stated in this defense under the general denial, the demurrer to it should not for that reason be sustained if the facts alleged would prevent a recovery. By subdivision 2 of section 500 of the Code of Civil Procedure, the answer may contain “a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition.” The service rendered by the plaintiff, the value of which the plaintiff seeks to recover, was procuring Unverzagt to enter into an agreement with the defendant for the purpose of forming a corporation to carry on a- certain specified business. It would be a complete defense for the defendant to prove that these services were rendered at the special instance and request of Unverzagt, and not at the special instance and request of the defendant. This defense is criticised, however, upon the ground that it does not deny the allegation of the complaint that the defendant promised and agreed to pay the plaintiff the sum of $5,000. But the complaint alleges but one agreement, and that thereby the defendant employed the plaintiff to perform this work, labor, and services for him, and promised and agreed to pay him therefor the sum of $5,000.

In Staten Island M. R. R. Co. v. Hinchliffe, 170 N. Y. 473, 481, 63 N. E. 545, 547), the court, in considering a separate defense, said: “This defense, in effect, avers that the obligations of the Rockwell Construction Company, for which the plaintiff seeks to render the defendant liable, were in fact paid by a firm known as Robert Wetherell & Co., and that if they were paid by plaintiff they were so paid with funds of that firm and as its agent. This is the substance of the defense. * * * The demurrer assumes the truth of the facts thus alleged. If they are true, it is difficult to see why they do not constitute a valid defense to the cause of action set out in the complaint. It is probably a defense that could be proved under the general denial, but this does not render the specific allegations demurrable. There are defenses which may be stricken out on motion, but cannot be reached by demurrer;” and the court cites with approval the case of Benedict v. Seymour, 6 How. Prac. 298.

While this defense is inartificially pleaded, the new matter alleged, viz., that the services were performed at the special instance and request of Unverzagt, taken in connection with the allegation that such services were not performed at the special instance and request of the defendant, would be a denial of the agreement as alleged, and constitute a defense, and it should not, therefore, be held insufficient upon demurrer.

It is unnecessary to determine whether or not this defense could have been stricken out on motion. No such motion was made, the plaintiff relying upon a demurrer which concedes the facts alleged, and such a demurrer could only be sustained where the defense, taken as a whole, is insufficient to meet the allegations of the complaint. If the allegation of this defense was entirely unnecessary, and thus mere surplus-age, the proper remedy of the plaintiff was to move to strike out the allegation, not because the court upon motion could strike out the complete defense, but because the separate defense was but a restatement of the general denial, which put at issue all the allegations of fact in the complaint, and not a separate defense, within subdivision 2 of section 500 of the Code. That question, however, cannot be raised by demurrer. Staten Island M. R. R. Co. v. Hinchliffe, supra.

I think, therefore, the judgment appealed from should be reversed, and the demurrer overruled, with costs in this court and in the court below, and with leave to the plaintiff to withdraw the demurrer on payment of costs,

VAN BRUNT, P. J., and McLAUGHDIN, J., concur.

The complaint alleges:

“First. That in or about the month of November, 1901, plaintiff and the defendant entered into an agreement whereby the defendant employed the plaintiff to perform certain work, labor, and services for him in and about procuring one Charles H. Unverzagt to - become interested as a promoter in the formation of a corporation for the sale and manufacture of certain machines, known as the ‘Agnew Auto Mailing Machine’ and the ‘Agnew Auto Addressing Machine,’ for which said defendant had taken out patents in the United States, and to procure said Unverzagt to enter into an agreement with said defendant for the purpose of forming a corporation for the purpose aforesaid, and of devising ways and means, in connection therewith of raising the necessary capital by means of the sale of stock of said corporation or' otherwise, and for which said work, labor, and services defendant promised and agreed to pay the plaintiff the sum of five thousand dollars. Second. That the plaintiff accepted said performance and entered upon the performance of said agreement, and spent a large amount of time negotiating with said Unverzagt for the purpose aforesaid, and did procure said Unverzagt to enter into an agreement with the defendant for the purpose aforesaid; that defendant did enter into such agreement with said Unverzagt, and received from him the sum of $1,000 in part performance of the same. Third. That the plaintiff has otherwise duly performed all the conditions of said contract on his part Fourth. That the defendant has failed and refuses to perform said agreement on his part, and pay this defendant said sum of five thousand dollars, and is now justly indebted to him therefor.”

Judgment is demanded for the sum of $5,000, together with interest and costs.

The first subdivision of the answer is a general denial, and the second is as follows:

“For a further and separate defense this defendant alleges, upon information and belief, that all the alleged services mentioned and referred to in the complaint herein were, and each of them was, rendered to one Charles H. Unverzagt, and at his special instance and request, and not at the instance and request of this defendant.”

Both complaint and - answer are verified.