Therasson v. McSpedon

2 Hilt. 1

• Court: New York Court of Common Pleas
• Decided: April 15, 1858
• Status: Published

Opinion

By the Court, Daly, First Judge.

The endorsement and transfer of the certificate with the consent of the company, was averred in the complaint, and not denied by the answer. A denial upon information and belief, is no traverse. The defendant must aver that he has no information or knowledge sufficient to form a belief. The fact was therefore admitted, and the motion for a non-suit was properly denied.

The promise of McSpedon was, not to pay the debt of another, but a promise to the association to pay his own debt incurred by the purchase of the property of the association. This, promise enured to the benefit of every shareholder and creditor of the association, and entitled any one of them to maintain an action upon it against the defendant. Barker v. Buchlin, 2 Denio, 45.

The other questions in the case, so far as they were material, were questions of fact upon conflicting testimony, in respect to which, the finding of the referee was conclusive.

Judgment affirmed.