Edwards agt. Lent. SUPREME COURT. EDWARDS agt. LENT and LENT. An answer is insufficient, if it denies merely upon information an allegation, the truth or falsity of which is within the defendant's own knowledge. It is also insufficient if it allege merely that the defendant has not sufficient knowledge on the subject to form a belief, without referring to his information. It is only when he has neither knowledge nor information to enable him to form a belief on the subject, that he can controvert an allegation under this provision of the Code. Albany Special Term, September 1852. Motion to strike out part of the defendant's answer. The complaint alleges that on the 19th of March 1852, the plaintiff leased to the defendants certain premises in the city of New York, for the term of ten years from the first day of May; that the defendants agreed to pay the extra insurance on the premises, if the rate should be higher by reason of the defendants using the premises for purposes different from that for which they were used at the time of the execution of the lease; and, if the plaintiff should pay such extra insurance, that they would refund the same on demand. The complaint further states that the defendants upon taking possession under their lease, converted a part of the dwelling house, which had before been used as a private boarding house and occupied by a family, into a refreshment saloon and billiard room, and rented the stable upon the premises for a public livery stable, whereby the rate of insurance was increased. The plaintiff further alleges that he was obliged to pay one hundred and eight dollars by reason of the increased rate of insurance; that before paying such insurance, he gave notice to the defendants that he would be obliged to pay the same on account of the change in the mode of occupying the premises, and the defendants then authorized him to effect such insurance upon the best terms he could. The plaintiff claimed judgment for the sum paid by him for such extra premium. Those parts of the answer embraced in this motion are as follows: "As to whether the said premises previous to the entry Edwards agt. Lent. in and upon the possession of said premises, by the said defendants, had been used as a private boarding house and occupied by a family, as in said complaint alleged, they have not sufficient knowledge to form a belief; and they therefore controvert the said allegation in said complaint made." Another similar allegation in relation to the change in the mode of occupying the premises, and the allegation that the defendants had notice of the increased rate of insurance, and authorized the plaintiff to effect the insurance upon the best terms he could, were controverted in the same form. J. EDWARDS, for Plaintiff. O. D. SWAN, for Defendants. HARRIS, Justice.-There are three forms in which a defendant may put in issue the allegations of the complaint. The first is, when the fact alleged is a matter within the personal knowledge of the defendant. The second is, when the matter alleged is not within the personal knowledge of the defendant, but relying upon his information, he either believes or does not believe the allegation to be true. The third is, when he has no such knowledge or information as will enable him to form a belief, whether the allegation is true or not. These forms of pleading may not be indiscriminately adopted. If the matter alleged is such as must, from its very nature, be within the defendant's own personal knowledge, he can not deny it upon information merely. If it be a matter in respect to which he has no personal knowledge, he must deny it upon his information, if he have such information as enables him to say he believes it to be untrue. When he is unable, either from his own knowledge or upon any information he has received, to say whether the allegation is true or not, he may say so, and this will be sufficient to put the allegation in issue. The answer will be insufficient, if it denies merely upon information an allegation, the truth or falsity of which is within the defendant's own knowledge. So also, it will be insufficient, if it allege merely that the defendant has not sufficient knowledge on the subject to form a belief, without referring to his information. It is only when he has neither knowledge nor information to enable him to form a belief on Edwards agt. Lent. the subject, that he can controvert an allegation under this provision of the Code. Tested by these rules, those portions of the answer which the plaintiff moves to strike out, are obviously defective. Whether the plaintiff gave the defendants notice that the rate of insurance would be increased, and whether, upon receiving such notice, they gave the plaintiff the authority stated in the complaint, are matters which must be within the personal knowledge of the defendants. They were bound therefore, unless they would admit the allegations, to deny them positively. It was, to say the least, an evasion for the defendants to controvert these allegations by saying they had not sufficient knowledge to form a belief in respect to them. But all three of the paragraphs to which the motion applies are defective for another reason. In each instance, the defendants state that they have not sufficient knowledge to form a belief, and therefore they controvert the allegation. The defendants only speak of their want of knowledge. Before they can be allowed thus to controvert an allegation, they must declare not only their want of knowledge, but their want of information also. It may well be that the defendants could not say they had no sufficient knowledge or information to enable them to form a belief whether the allegations they were answering were true or not. We have seen that it is only when there is an absence of such knowledge or information that this mode of answering is allowable. The motion must be granted, with costs, but with liberty to the defendants to amend their answer within twenty days after service of a copy of the order upon this decision. Osborne agt. Betts and Smith. SUPREME COURT. OSBORNE agt. BETTS AND SMITH. Where a cause is tried before a judge at the circuit without a jury, who suosequently files his decision, an application can not afterwards be made for an extra allowance to another judge, presiding at a different court. Such application ought to be made at the trial of the cause. It seems, that the statute does not authorize the court to make an extra allowance in an action brought to set aside a voluntary assignment. Albany Special Term, March 1853. This cause was tried before Justice HARRIS, without a jury, in November 1852, and a decision made therein on the 13th January 1853, by which the complaint was dismissed without costs as to defendant Betts, and with costs as to the defendant Smith. The defendant Smith, now moves for an extra allowance of costs under section 308 of the Code, and excuses his delay in making the application on the ground of professional engagements. HENRY SMITH, in Person, Defendant. Parker, Justice.--Rule 82 declares that applications of this description can only be made to the court before which the trial is had, or the judgment rendered. This does not mean that if the trial is in the Supreme Court, the application must be made in that court. Such a provision would be quite unnecessary, for no lawyer would think of applying to any other than the Supreme Court for such allowance. It was intended by the rule that the question of extra allowance should be determined by the judge who tried the cause, who must necessarily be most competent, from his knowledge of its character, to decide upon the propriety of the application, and the extent to which the allowance should be made, if made at all. It was also a leading object of the rule to prevent the abuse which had already been attempted, of attorneys running around to inquire out and select a judge for the application, in the hope of finding one who might prove to be more facile than his brethren, in yielding to these too often extravagant demands for extra allowance. It was hoped that by this restriction some of the evils growing out Osborne agt. Betts and Smith. of this most objectionable provision of the Code, might be guarded against, though it is certain that no uniformity of practice, or of opinion, can ever be attained under it. The language of the rule sufficiently indicates the object above stated. If a cause be tried at a circuit court in Schoharie, the successful party can not apply at a circuit court in Albany for an extra allowance. Nor can such application be made at a special term or at a subsequent circuit, even in Schoharie, but "only to the court before which the trial is had;" that is, it must be made at the circuit or court at which the cause was tried (Dyckman agt. McDonald, 5 How. Pr. R. 121). In this case no application for an extra allowance was made to Justice HARRIS, by counsel on either side at the time the cause was submitted, nor did the counsel ask to have that question reserved by the judge for subsequent argument or further consideration, and the application can be made at no other court. In The People vs. Clarke (11 Barb. R. 337), an extra allowance was made by Justice WILLARD, in a cause which had been previously decided by Justice CADY. But no objection appears to have been taken, and no reference made to the rule, and the question may have been submitted to Justice WILLARD, by the consent and for the convenience of counsel. The last clause of the rule was designed to enable a party who had succeeded in a cause tried before a referee, to apply for an extra allowance at a special term of the court (Sackett agt. Bull, 4 How. Pr. R. 71). This was necessary for the reason that no such application could be made to the referee. The motion must be therefore denied. I am inclined to think there is another good answer to the motion. The action is said to have been brought for the purpose of setting aside a voluntary assignment. An additional allowance is not given under the first clause of the 308th section, except when the action is brought for the recovery of money, or of real or personal property. In an action purely equitable, no extra allowance can be made, unless it comes under the latter clause of the section, which is clearly inapplicable to this case. But this point was not raised on the argument, and the motion is denied on the other ground, but without costs. |