Manufacturers' National Bank v. Russell , 13 N.Y. Sup. Ct. 375 ( 1876 )

Pe^' Ouriam:

We think the answer was frivolous. The first defense denies “ that defendants have not paid the said note, or any part thereof, and deny that the same is payable,” that being an allegation of the complaint. This denies no material fact of the complaint; it denies no fact which plaintiff was bound to prove ; it sets up no affirmative defense or plea of payment.

The second defense is equally worthless. It alleges that the note in suit was given by mistake for too great a sum, but whether for a cent or a dollar does not appear. It fails to show that the amount of such excess was sufficient to extinguish the note, as in Seeley v. Engell (13 N. Y., 542). Indeed, such could not be the case, since it is not alleged that any thing has been paid upon the note, and the allegation by implication is, that the note was properly given for all but such excess. This second answer is not, therefore, a defense to the action. At most it shadows a counter-claim, but it lacks all the elements of a counter-claim, in not showing any amount due from the plaintiff to defendants, or asking that any amount should be allowed to defendants as against plaintiff’s claim. Nor does it show, that such counter-claim exists at the time of the answer, or at any time after the execution of the note and its discount by plaintiff.

Every thing being proved that is set up in the answer of defendants, plaintiff would still be entitled to judgment for the amount claimed.

Such an answer is frivolous, and the order and judgment entered thereon should be affirmed, with costs.

Present — Learned, P. J., Bockes and Boardman, JJ.

Order and judgment affirmed, with costs.