Wooden v. Strew , 10 How. Pr. 48 ( 1853 )

Morris, Justice.

The proper determination of this motion depends upon a correct construction of the Code of Procedure. The portions of the Code applicable to this question are the following: viz., §§ 140 and 142, in relation to the form and contents of a complaint. § 168, that all material allegations alleged in the complaint, and not controverted by the answer, are to be taken as true; § 159, that every subsequent pleading be verified (except a demurrer) when the previous pleading was verified ; § 389, abolishing all suits for discovery, and directing that no party shall be examined by the adverse party except in the manner prescribed by the 6th chapter of the Code. Chapter 6 prescribes the manner in which an adverse party is to be examined, and § 395 provides, that when an adverse party is under examination by his opponent., he may be examined in his own behalf. Each of these provisions of the Code must be so construed and applied as to give full effect and power to the others. I will now apply the provisions of all these sections to the complaint under consideration.

The allegations in the complaint which are objected to consist of the averments of the occurring of various distinct acts, conversations, omissions, and intentions of the defendant, tending to' show that he committed the fraudulent act, for which he is prosecuted. Each of these allegations assert the occurrence of a circumstance that would be relevant testimony upon the trial of the cause; but neither of .them, nor all combined, are the fraudulent act for which the defendant is prosecuted. If these allegations are legally in the complaint, the complaint being upon oath, the defendant, by section 159, is obliged to answer upon oath whether they are true or false; or should he not deny thenfin his answer, they are, under the 168th section, deemed to be true, and would be read upon the trial as evidence in the cause. This construction would give the complaint the full effect of a bill of discovery, and would be an examination of the defendant by bill and answer. Such operation of a complaint is not permitted, because § 389 of the Code abolishes all suits for discovery, and directs that no party shall be examined by the adverse party except in the manner prescribed by the 6th chapter of the Code.

The 6th chapter of the Code provides that parties are to be examined in the same manner as witnesses; and that when a party is introduced as a witness by the adverse party,, he may also be examined on his own behalf. These provisions of the Code are inconsistent with the right to retain in the complaint the allegations objected to.

Section" 142, subdivision 2,- in relation to the form and contents of a complaint, is as follows:—

§142. “ The complaint shall contain,”

2d. “ A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.”

This section must be so construed as to give full effect to the other provisions of the Code alluded to, and that can only be done by deciding'that the words “facts constituting a cause of action” mean those facts which the evidence upon the trial will' prove, and not the evidence which will be required to prove the existence of the fact.

Motion of defendant granted, with $10 costs, of motion.