Mandigo v. Bailey

64 A.D. 432, 72 N.Y.S. 227

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1901
• Status: Published

Opinions

Woodward, J.:

This action is brought to recover $150, alleged to have been tortiously procured from the plaintiff’s husband through the instru-. mentality of a chattel mortgage upon a certain upright piano,, the property of a third person." Plaintiff’s husband is dead, and the executor of his estate, it is alleged in the complaint, “ duly assigned to this plaintiff the above-mentioned chattel mortgage, and all claims the said John P. Mandigo had against this defendant.” The answer of the defendant denies that the executor “ assigned the said chattel mortgage to plaintiff,” but did' not deny the remaining part of the allegation, “and all claims' the said John P. Mandigo had against this defendant.” It is claimed that this is an admission of the assignment of the claim of John P. Mandigo for the fraudulent procurement of the $150. .The question was submitted to the jury, which found a verdict for the plaintiff. Upon motion this was set aside and a new trial granted, under the provisions of section 999 of the Code of Civil Procedure, on the ground that the executor had not assigned the tortious cause of actiop. to the plaintiff. The plaintiff appeals from the order setting aside the verdict.

When the defendant denied the assignment of the chattel mortgage, because he had no knowledge of the fact, he may fairly be assumed to have intended to deny all of the matters alleged in connection with the averment. The assignment put in evidence in support of the plaintiff’s allegation makes no mention of any claim against the defendant, with the exception of the chattel mortgage which is alone “ sold, assigned, transferred and set over” to the plaintiff. If it were necessary to support the order, the pleadings in the present case might he deemed to have been amended in harmony with the proof introduced by the plaintiff, as provided by section 723 of the Code of Civil Procedure, and in furtherance of justice the technical mistake of the defendant in not making his denial as broad as the averment of the complaint might be corrected under the provisions of the same section. We are of opinion, however, that the words “ and all claims the said John P. Mandigo had against this defendant ” were immaterial, and that the defendant was not bound to negative them.

The order appealed from should be affirmed, with costs.

Hirschberg and Jenks, JJ., concurred; Goodrich, P. J., read for reversal, with whom Sewell, J., concurred.