Waggoner v. Millington

15 N.Y. Sup. Ct. 142

• Court: New York Supreme Court
• Decided: June 15, 1876
• Status: Published

Opinion

Taloott, J.:

This is an appeal from a judgment on the report of a referee. The action was on a note made by the defendant, a married woman, to secure a debt due from her husband. The note contained a clause distinctly charging the separate estate of the defendant with the payment of the debt.

The referee correctly held, that the fact that the defendant signed the note was admitted by the answer. The answer commenced with a general denial of each and every allegation in the complaint contained, “ except as hereinafter stated and admitted.”

The defendant for a third defense alleges that the note “was given for a prior indebtedness of Philander Millington in his own business and for his own benefit, and this defendant was solicited to sign said note for said Philander, and did so without any intention of charging her separate estate or knowing that she had done so.”

The third answer contains no defense to the action, and its sole office in legal effect is to admit the making of the note. The general denial is qualified by the words “ except as hereinafter stated and admitted.” There appears to be no admission in the answer on any subject except that the defendant made the note, and the qualification of the denial is senseless except it be construed to refer to the making of the note.

If ambiguous, the pleading is to be construed most strongly against the pleader.

The note was not avoided by the filling of the blank after the word “ at,” left for inserting the place of payment.

The leaving of this blank gave implied authority to the lawful holder to fill it up by designating a place of payment. (Kitchen v. Place, 41 Barb., 465; Redlich v. Doll, 54 N. Y., 234.) The body of the note contained a sufficient admission that the defendant was possessed of a separate estate. The court itself corrected the error,- if any, in putting its refusal to adjourn the case on the ground that the evidence proposed to be given by the defendant was inadmissible under the pleadings, by withdrawing the refusal to adjourn and adjourning for four days to give defendant an opportunity to produce the evidence, and notifying the -defendant thereof. At the expiration of that time the defendant should have produced the evidence or shown cause for a further adjournment.

The judgment must be affirmed.

Present — MulliN, P. J., Smith and Taloott, JJ.

Judgment affirmed.