great that the jury might have said that the negligence was sufficient to charge the defendant therewith. [2] Nor do I think the plaintiff was guilty of contributory negligence as matter of law. He was asked by his wife to examine to see whether the wires were insulated, for the purpose of ascertaining whether there was danger to the children in playing thereabout. Confessedly the wires were insulated, except that at one small point the insulation was worn off. It is a fact that that insulation was wholly insufficient to protect any one coming in contact with wires carrying so strong a current; but it does not appear that the plaintiff had knowledge that the insulation was insufficient. He swears that he did not purposely touch the wires, but attempted to go under them, and does not remember how he came to come in contact with them. With the apparent insulation, even if he had taken hold of the wire to lift it, that he might go under, it would still be a question of fact whether he had not the right to assume that his act was safe; but without evidence that he purposely took hold of the wire, it seems clear that it is for the jury to say whether, under all the circumstances of the case, the plaintiff acted with the care of an ordinarily prudent person. For these reasons, we are of opinion that the judgment of nonsuit was wrong, and that the case should have been submitted to the jury. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur, except KELLOGG and HOWARD, JJ., who dissent. (164 App. Div. 580) THORNTON v. BELL. (No. 251-94.) (Supreme Court, Appellate Division, Third Department. November 25, 1914.) 1. JUSTICES OF THE PEACE (§ 92*)-PROCEDURE-PLEADING-DENIAL-STAT UTE. In an action in a City Court on a judgment alleging that, prior to the action, it had been duly assigned to plaintiff, who became and continued to be the lawful owner thereof, a separate answer and defense, denying any knowledge or information sufficient to form a belief as to the truth of the allegation of assignment and ownership, was not sufficient, under Code Civ. Proc. § 2938, providing that an answer in a justice's court may contain a general denial of each allegation of the complaint, or a specific denial of the material allegations thereof. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 324, 325; Dec. Dig. § 92.*] 2. ASSIGNMENTS (§ 65*)-CLAIM FOR COLLECTION-VALIDITY. There is no public policy forbidding an assignment of claims to a private individual for collection. [Ed. Note. For other cases, see Assignments, Cent. Dig. § 126; Dec. Dig. § 65.*] Kellogg, J., dissenting. Appeal from Broome County Court. Action by George H. Thornton against George W. Bell. From a judgment affirming a judgment of the City Court of Binghamton in favor of the plaintiff, defendant appeals. Affirmed. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ. Augustus Babcock, of Binghamton, for appellant. T. B. & L. M. Merchant, of Binghamton, for respondent. WOODWARD, J. The complaint in the City Court of Binghamton alleged the jurisdictional facts necessary to a cause of action upon a judgment of an inferior court, and that "on or about the 1st day of December, 1893, at the city of Binghamton, * * * one John Cameron duly commenced an action against George W. Bell, the defendant herein, before said justice on a judgment of an inferior court, not of record, for damages and costs $23.95, which said judgment had been theretofore obtained by one Jepath P. Marsh against said defendant and assigned to the plaintiff in that action, John Cameron," and that the necessary steps were taken resulting in a judgment in favor of the said John Cameron and against the defendant herein for the sum of $33.35; that a transcript of said judgment was duly filed and judgment duly docketed and entered thereon in the Broome county clerk's office, and an execution upon said judgment was thereafter and on the same day duly issued out of the Broome County Court, and that the execution was returned wholly unsatisfied, etc.; that "said judgment still remains in full force and effect, not reversed, satisfied, or otherwise vacated, and no part thereof has been paid"; and "that prior to the commencement of this action the said judgment was duly sold and assigned to the plaintiff herein, who then became and still is the lawful owner and holder thereof"-and demands judgment. for $34.98, together with interest, costs, etc. This complaint is verified. Upon the return day the parties met, but no issue was framed, and the case was adjourned to a subsequent date. Upon the adjourned day the defendant put in a verified answer, neither party offering any evidence, and the justice gave judgment for the plaintiff upon the pleadings. The defendant appealed to the County Court of Broome county, where the judgment was affirmed, and appeal comes to this court from the judgment entered in the County Court. [1] The defendant in answering merely stated that for "a first and separate answer and defense to said cause of action defendant denies that he has any knowledge or information sufficient to form a belief as to the truth of the allegation in said complaint set forth, in the seventh subdivision or paragraph thereof, that before the commencement of this action said judgment mentioned and set forth in said complaint was sold and assigned to the plaintiff herein, or that he is the lawful owner and holder thereof," which is obviously not a denial of the allegation of the complaint. The complaint in its seventh paragraph may be absolutely true, and the defendant know nothing of the facts; and while a denial of this character is good under the provisions of section 500 of the Code of Civil Procedure, it does not meet the requirements of section 2938 of the Code of Civil Procedure, dealing with proceedings in a justice's court. Lambert v. Hoffman, 20 Misc. Rep. 331, 45 N. Y. Supp. 806; Sanchez & Haya Co. v. Hirsch, 27 Misc. Rep. 202, 57 N. Y. Supp. 795; Alexander v. City of Albany, 55 App. Div. 238, 66 N. Y. Supp. 1084. It was proper, therefore, to give judgment for the plaintiff upon the verified complaint. The defendant sought to set up the defense of the statute of limitations in his "second and separate answer and defense"; but a reading of the allegations of the answer shows conclusively that the defendant has failed to make the necessary allegations to bar the present action, which is brought upon a second judgment founded upon the judgment to which the defendant refers in his pleadings. It does not seem necessary to enter into a detailed criticism of the pleading in this respect; the defects are obvious. [2] The third separate answer requires no discussion. There is no public policy which forbids an assignment of a claim to a private individual for the purpose of collection, and the defendant offered no evidence in support of this alleged defense. The judgment appealed from should be affirmed, with costs. All concur, except KELLOGG, J., who dissents. TAGGART v. FRANCIS DRAZ & CO. et al. (No. 6452.) (Supreme Court, Appellate Division, First Department. November 27, 1914.) 1. ACTION (§ 50*)-EXECUTORS AND ADMINISTRATORS (§ 427*)-JOINDER-REPRESENTATIVE CAPACITY. Where defendants by misrepresentations induced plaintiff, who was interested in and was both an executor and trustee, to sell corporate stock belonging to the estate, plaintiff has three rights of action, as an individual, as an executor, and as trustee, and, if such actions are commingled, a demurrer on the ground of misjoinder should be sustained. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. § 50;* Executors and Administrators, Cent. Dig. §§ 1666-1672; Dec. Dig. § 427.*] 2. CORPORATIONS (§ 495*)-LIABILITY OF CORPORATIONS. For a corporation to be liable for misrepresentations by its directors, which induced plaintiff to sell shares of stock therein, it must appear that the corporation itself shared in the purchase. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1906; Dec. Dig. § 495.*] 3. CORPORATIONS (§ 306*)-ACTIONS AGAINST OFFICERS. Where the sole surviving directors of a corporation, by misrepresenting the value, induced plaintiff to sell to them stock in the corporation, they are liable to plaintiff for damages for their fraud. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. § 306.*] Appeal from Special Term, New York County. Action by Frederick S. Taggart, individually and as executor, etc., against Francis Draz & Co. and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. The opinion of Lehman, J., at Special Term, is as follows: The plaintiff sues, individually and as executor of and trustee under the will of Frank A. Taggart, for damages suffered by reason of the alleged misrepresentations made by the defendants Eschwege and Draz, individually and For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes as sole surviving directors of the corporate defendant, whereby they induced the plaintiff to sell, individually and as executor and trustee, certain shares of the stock of the corporate defendant for an inadequate consideration, and to execute and deliver to them an assignment in blank of the said shares, and a further paper in blank whereby he released as executor and trustee all his right, title, and interest in and to said shares. The defendants have demurred to this complaint on the grounds that there is a misjoinder of parties plaintiff, that causes of action have been improperly united, and that the complaint does not state facts sufficient to constitute a cause of action. [1] It appears that the title to the shares alleged to have been assigned vested in the plaintiff as executor, and that, unless there has been a division of the estate and a setting apart of the securities to the legatees, the plaintiff, as executor, is vested with a cause of action for the damages suffered by reason of the fraud by which the transfer of these shares by such executor was secured. In such an action it may be that the plaintiff, individually and as trustee, would have some interest in the cause of action by reason of his ultimate right to the shares as legatee under the will, and might therefore be a proper, though not a necessary, party to the action. In the view which I take of the complaint, however, this question does not arise in this action, and need not be considered by me, for the complaint does not merely make the plaintiff, individually and as trustee, party to a cause of action arising by reason of the acts of the executor; but it alleges that these acts were performed by the plaintiff, either individually and as executor and trustee, or as executor and trustee, and seeks damages for these acts. Any acts of the plaintiff, individually and as executor and as trustee, would seem to give rise to three separate and distinct causes of action, for in so far as he was acting as executor he could not have been acting individually and as trustee. While undoubtedly the complaint fails to set forth a complete cause of action in either of the latter capacities, the pleader seems to have realized that there was a distinction in these capacities, and seems to have at least made some attempt to set forth separate causes of action. This would seem especially true of the allegations of the plaintiff's acts as an individual, which seem somewhat clearly differentiated from his acts as executor and trustee. It follows, therefore, that the demurrer should be sustained on the grounds that there is a misjoinder of parties plaintiff and a misjoinder of causes of action. [2, 3] I also think that, while the complaint sets forth a good cause of action against the individual defendants, it fails to set forth a cause of action against the corporate defendant. The theory of the action seems to be that the plaintiff is entitled to the difference between the actual value of the shares of stock and the price at which it was secured by reason of the alleged misrepresentations. In order to hold the corporate defendant in such an action, the complaint must allege, either directly or by fair inference, that the corporation itself shared in the purchase. There is no direct allegation to this effect, and I do not think that the facts stated gave rise to such an inference. The complaint does not even state that the corporation had a surplus from which it could purchase the stock without a breach of the Penal Law. It is true that the complaint states that the stock was in fact worth $141.15 per share; but the value given may well be due to earning capacity, and not to surplus, especially as the complaint states that the plaintiff was ignorant of its earning capacity. The allegations of the complaint, from which I am asked to infer that the corporation was interested in the purchase, are only statements that the assignment and release in blank were delivered to these defendants and paid for by checks of the corporation. In the absence of a statement of the nature of the delivery, all of these statements are, in my opinion, insufficient to allow any inference that the corporate defendant obtained or was intended to obtain any title to this stock. Motion is therefore denied, with $10 costs, and with leave to serve an amended complaint within 10 days upon payment of costs. Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ. R. B. Knowles, of New York City, for appellant. PER CURIAM. Order affirmed, with $10 costs and disbursements, on the opinion of Lehman, J., at Special Term, with leave to plaintiff to serve amended complaint, on payment of costs in this court and in the court below. Order filed. WESTMINSTER PRESBYTERIAN CHURCH OF WEST TWENTY-THIRD Where the prior judgment sought to be set up as a bar in the supplemental answer has been reversed, and the complaint dismissed, leave to serve such supplemental answer should be denied. [Ed. Note.-For. other cases, see Pleading, Cent. Dig. §§ 842-846; Dec. Dig. § 280.*] Appeal from Special Term, New York County. Action by the Westminster Presbyterian Church of West TwentyThird Street against the Trustees of the Presbytery of New York. From an order denying plaintiff's motion for judgment on the pleadings, and from an order granting defendant leave to serve a second supplementary answer, plaintiff appeals. Order denying motion for judgment affirmed, order granting motion to serve supplementary answer reversed, and motion denied. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ. Richmond J. Reese, of New York City, for appellant. PER CURIAM. The order denying the motion for judgment on the pleadings should be affirmed, without costs. As to the second order, inasmuch as the prior judgment now sought to be set up as a bar in the supplemental answer has been reversed, and the complaint. dismissed, the order granting such leave should be reversed, and the motion denied, without costs. (Supreme Court, Special Term, Kings County. November 24, 1914.) 1. MANDAMUS (§ 23*)-CANVASS OF ELECTION RETURNS-COMPELLING CANVASS "CANDIDATE"-"PARTY CANDIDATE"-"INDEPENDENT CANDIDATE." Under Election Law (Consol. Laws, c. 17) § 358, subd. 4, as amended by Laws 1913, c. 821, providing, relative to the preparation of the ballot by a voter, that, to vote for any "candidate" not on the ballot, he shall write the candidate's name on a line left blank, in the appropriate place, a person so voted for is a “candidate,” within section 381, authorizing the issuance of a writ of mandamus upon the application of any candiFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |