Post Publishing Co. v. Bennett , 149 N.Y.S. 867 ( 1914 )

Smith, P. J.:

The action was brought in Justice’s Court to recover the consideration for an advertisement inserted by the plaintiff in its publication, as is alleged, at the request of the defendants, and the amount agreed upon was forty-four dollars and forty cents. It is further alleged that the same has not been paid and that the defendants are indebted for the same. This complaint was verified and was served with the summons upon defendants James A. Bennett and John E. Bennett, according to the return of the constable. An answer appears in the case to have been made by Sturtevant & Abbott for all of the defendants, in which they deny knowledge or information sufficient to form a belief as to the plaintiff’s incorporation, denying that at the time mentioned in the said complaint the defendants were and now are copartners under the firm name or style of Bennett & Sons Company; and deny that they are indebted to the plaintiff for the sum of forty-four dollars and forty cents, or any sum whatsoever. Three days before the trial the plaintiff served upon John E. Bennett a subpoena duces tecum, requiring the production of the books, papers and articles of agreement of the Bennett & Sons Company, and all day books, ledgers, cash books, etc., and “ the letter written to said Bennett & Sons Co. by E. H. Neary, the attorney of plaintiff, bearing date March 19,1913.” John E. Bennett refused to produce any of these papers or books specified in the subpoena duces tecum, on the ground that .it had not been served five days before the trial, and in this refusal he was sustained by the justice. E. H. Neary, the plaintiff’s attorney, was sworn in behalf of the plaintiff. In his testimony he swore that he wrote a letter to defendants stating that the claim in favor of plaintiff was in his hands for collection in the sum of forty-four dollars and forty cents, and demanding payment thereof. He then swore that very soon thereafter he met the defendant James A. Bennett, and stated to him that such claim was in his hands, stating from whom and the amount, and asking him when it would be paid. The defendant James A. Bennett replied, “ John would send a check for it in a few days and I know about it.” The witness swore that he asked who composed the firm of Bennett & Sons Company, and that James A. Bennett refused to answer. In the defense of the action James A. Bennett being sworn said that he had the conversation with Weary; that Weary said to him that he had a claim to collect against the company, and that he replied that he knew nothing about it; that he had nothing to do with it, and that Weary asked who composed the company, and he swore he knew nothing about it, and told him that he himself was not a member of the company, and that he did not state to him to speak to John and that John would send a check in a few days. He also swore that he never was a member of the firm of James A. Bennett & Sons Company, “and am not now a member.”

Upon these pleadings plaintiff was clearly entitled to the judgment which the justice of the peace rendered. The denial of the incorporation is insufficient under section 1776 of the Code of Civil Procedure to put the plaintiff to proof of its incorporation. Defendants’ denial that they were members of the copartnership of Bennett & Sons Company is not a denial that they promised to pay for this advertisement. It is a denial of matter unnecessarily averred by the plaintiff, and raised no material issue. The denial of the indebtedness was a denial of a conclusion of law, which is insufficient. As against the defendants served the judgment was clearly right and should have been affirmed. As against the defendant Lawrence M. Bennett the judgment also was right. While he was not served with summons and verified complaint he appeared by attorney in Justice’s Court, and by the same attorneys who appeared for him in the County Court. While the authority of these attorneys to appear for him was not sworn to it was not necessary that it should be, unless questioned by the plaintiff. (Code Civ. Proc. § 2890.) The failure upon his part then, even though not served with the verified complaint, to deny any of the material allegations of the complaint constitutes an admission of the allegations not denied.

The judgment of reversal should, therefore, be reversed, and judgment of the justice of the peace affirmed, with costs in the County Court and in this court.

All concurred.

Judgment of County Court reversed and that of the justice of the peace affirmed, with costs in the County Court and in this court.