Stegman v. Hollingsworth , 42 N.Y. St. Rep. 910 ( 1891 )

Barnard, P. J.

The plaintiff was sheriff of Kings county. The defendant Hodgekinson was his under-sheriff, and defendant Hollingsworth was surety of Hodgekinson to the sheriff. The under-sheriff got $3,400 as under-sheriff and did not pay it over. This action is brought to recover the amount of the surety. The answer avers that portions of the money collected was paid out for taxes and assessments and for other purposes; that the under-sheriff had paid out the money or part of it to an iron company, with plaintiff’s assent. It is perhaps a question whether these defenses are designed to set out payments or independent causes of action which will be allowed as offsets or counter-claim. The reply does no harm to the defendant. It may remain a question of doubt upon the trial as to the fact whether or not any portion of the answer is technically admitted because it is not denied. The order refusing to strike out the reply should therefore be affirmed, with costs and disbursements. All concur.