Martin v. Kanouse , 11 How. Pr. 567 ( 1855 )

Mitchell, J.

The defendant appeals from an order of the special term, pronouncing his answer frivolous. On such appeal if the answer does not establish a good defence, the general term should sustain the order made, although it might not regard the answer as frivolous. The plaintiff shows that Couthout and Bleecker obtained a judgment against Kanouse, that Bleecker died, and then Couthout, as survivor, assigned the judgment to the plaintiff; that Kanouse also recovered judgment against the plaintiff, and the object of the action is to set-off one judgment against the other. The question intended to be finally presented to the Court is whether the attorney for Kanouse had such a lien for the costs recovered in the suit between Kanouse and the plaintiff, that the plaintiff cannot set-off the judgment which he now holds against the judgment which stands in Kanouse’s name against the plaintiff. The Court is inclined to have that question fairly presented, and that the decision on the merits should not be finally defeated by any imperfection in the pleadings, or by any doubtful construction (on the part of the Court) of the pleadings of either party. The answer alleges that the judgments in favor of Kanouse are for costs only, no part of which ever belonged to this defendant, but belong to Garr as his attorney in those suits; and that the defendant is not the beneficial owner of the judgment recovered in his favor.

Prima facie a judgment in favor of a party belongs to him whether it be for costs alone, or for debt or damages and costs; and it might follow under a rigid system of pleading, that this prima facie conclusion must continue until the pleader should show how and by what means a transfer of this right was made so as to justify a different conclusion. Under such a system the answer would be frivolous, because it does not show facts sufficient to change the prima facie conclusion of law. It does not show how it is that the costs recovered never belonged to this defendant, nor how it is that he is not the beneficial owner of the judgments. The real fault, however, in this kind of pleading, is that it is not as definite and certain as it should be, and for that imperfection the Supreme Court in this district has held the only remedy to be that pointed out by the Code — • a motion to make it more definite and certain. If it be true that these costs did not belong to the defendant when the assignment was made to the plaintiff, and the defendant should prove that fact by showing an assignment made by him to Garr, or a valid agreement that the costs should belong to Garr, the defendant would probably succeed, and the question intended to be raised not be passed upon. The proper course will be to reverse the order of the special term without costs, and to leave the plaintiff to move that the answer be made more definite and certain, and then the defendant should show how, and in what manner, and for what reason, the costs never belonged to the defendant, whether it was by virtue of the attorney’s lien for costs, or by virtue of any special agreement between the defendant and his attorney, and if the last, what that agreement was, and when it was made, whether by parol or in writing.

The defendant’s allegation as to part is in the present tense, that the defendant is not the beneficial owner of the judgment, and that the costs ielong to Mr. Garr, his attorney; this also should be amended, and he should state that they so belonged to Mr. Garr at least before the commencement of this action, if not before the assignment to the plaintiff. In those respects, also, the answer should be made more definite, fixing the time when Garr became either the owner of the costs or a lien-holder of them.

When the pleadings shall be corrected in these respects the Court must suggest to both parties that it will be to their interest to allow the cause to proceed to trial without continual motion before the Court. At the trial the facts will be disclosed, and the cause put in train for a final decision on the merits.