Sayre v. Cushing , 7 Abb. Pr. 371 ( 1858 )

Beady, J.

—The plaintiff recovered a judgment in the district court of the first judicial district, against one Bretal, and an execution was thereupon. issued to Cushing, one of the defendants, who was a constable. Cushing having collected the money, and having failed to return the execution as prescribed by law, an action was by the plaintiff commenced against him, and a judgment recovered for the amount of the original judgment and execution, and costs. The plaintiff now sues the defendant and his surety, having obtained the leave of the court therefor. The defendants set up a variety of matters which would have been proper in the action against Cushing, doubtless, but are not available in this action. The liability of the defendant Cushing has been passed upon by the judgment against him at the suit of the plaintiff, and it must be assumed upon a full consideration of all the facts. It is difficult to conceive a defence upon such a judgment, and none has been set up in the answer. There is one allegation, however, intended as a denial, which requires consideration, because if good as a denial, it puts a material averment of the complaint in issue. It is as follows : “ And this defendant says, that he does not know, of his information or otherwise, that the plaintiff commenced the action in the complaint mentioned against said Cushing, or whether judgment was obtained therein, and execution issued against said Cushing, or returned as in said complaint alleged.”

This statement is neither in form nor effect a positive denial, nor a denial of any knowledge or information sufficient to form a belief of the fact alleged and sought to be controverted. It is a mere statement that the defendant don’t know of his information or otherwise, without expressing whether or not he has sufficient knowledge or information to form a belief as to the fact charged, and does not, therefore, conform to the Code (§149).

For these reasons the plaintiff seems to be entitled to judgment. Ordered judgment for plaintiff, with liberty to the defendant, however, to amend his answer in five days, on payment of $10 costs of this action.