(No. 9.) Answer containing specific denials, both positive and of knowledge or information, to a complaint in an equitable action.1 SUPREME COURT-SCHOHARIE COUNTY. John Walker Ira Hubbard, as administrator, Elizabeth M. Spencer, widow and administratrix, Orlando Spencer, as administrator and heir, and William M. Spencer and Jared Spencer, heirs of Chancellor Spencer, deceased. The above defendants, answering the complaint of the said plaintiff, say, and each one says: That they have not knowledge or information sufficient to form a belief whether the said plaintiff was eighty-three years old on the 23d day of September, 1849, or whether a son of said plaintiff died on or about the 15th day of December, 1846, leaving a widow and seven children, or whether he has a wife and six children now living, and therefore the defendants deny the same. The defendants, further answering, say: that they have not knowledge or information sufficient to form a belief whether the plaintiff, in December, 1846, had a severe attack of fever which confined him to his house, and most of the time to his bed, until the month of April, 1847. The defendants deny that the mind of the said plaintiff, from the effects of such sickness, added to the infirmities of age and physical debilities, became so impaired as to render him wholly, or at all, incapable of transacting his To complaint No. 28, Part II., p. 142, ante. own business, and to make him wholly, or at all, dependent upon others for the management of his affairs, and that the said plaintiff has ever since remained, and is now, weak in body and mind, and incapable of managing his business affairs with adequate discretion. The defendants also deny that Chancellor Spencer acted as counselor and adviser of said plaintiff, in most of his business transactions, for a long time previous to his sickness, and that during such sickness the said Chancellor acted as the attorney and general agent of said plaintiff, in most or all of his business transactions, and exercised entire and exclusive control over the same. The defendants have not knowledge or information sufficient to form a belief whether the farm referred to in the said complaint was worth $3,500, which constituted the whole property of plaintiff, except a small amount of personal property, not exceeding enough to pay the demands against him. The defendants deny that the said Chancellor, designedly to obtain the property aforesaid of said plaintiff for little or no consideration, with the design aforesaid, and the better to enable him to accomplish his purpose, appeared to take an unusual interest in the welfare of the said plaintiff, and by flattery and various other devices, as the confidant, adviser and attorney of said plaintiff, acquired such an undue influence over him as to obtain and exercise entire control of the mind and business matters of the said plaintiff. The defendants deny that the said plaintiff, still being so enfeebled and weak in mind, and incompetent, and under the influence of the said Chancellor, was induced and influenced by the said Chancellor to make and execute the writing, a copy of which is annexed to the complaint, marked A. The defendants, further answering, say, that they have not knowledge or information sufficient to form a belief whether the said Chancellor, knowing that the said plaintiff was to be at the village of Durham on the 19th day of April, 1847, where he would be free from the influence of any portion of his family or friends, desired the said plaintiff to give him a writing, expressing the terms upon which he, said Spencer, should come to reside with him, said plaintiff, and therefore they deny the same. The defendants deny that the said plaintiff informed the said Chancellor that he wished to have the matter delayed, and that he could come to the plaintiff's house at some future time, when he, said plaintiff, would give him, said Chancellor, a writing, as he, the said plaintiff, was then so feeble in body and mind, that he, said plaintiff, felt unable to make any writing understandingly, and so informed said Chancellor. The defendants also deny that the said Chancellor thereupon stated to said plaintiff, that he, the said Chancellor, would be liable to censure if he should do it himself, at the plaintiff's house, and that he, the said Chancellor, would pay the whole expense, and if the said plaintiff was dissatisfied with any part of said agreement, he, said Chancellor, would, at any time thereafter, modify or alter it as the said plaintiff might wish. The defendants also deny that the plaintiff, being weak and feeble, as above mentioned, was thereby induced by the said Chancellor to execute the writing above referred to, believing that any alterations would be made at any time thereafter upon said plaintiff's request. The defendants also deny that said plaintiff afterwards learned and understood the effect and meaning of the said writing, which was to deprive him of adequate means of support for himself and family, and that, for comparatively no consideration, the said farm was leased to the said Chancellor during the life of the said plaintiff, and after the decease of the said plaintiff, to the said Chancellor and his heirs forever, thus disinheriting his remaining children, being equally needy, and having equal claims upon the bounty of the said plaintiff. The defendants have not knowledge or information sufficient to form a belief whether the said plaintiff frequently requested the said Chancellor to change, alter or surrender up the said writing. The defendants also deny that the said defendants, Orlando and Jared, have cultivated the said farm in so unfarmerlike and negligent a manner as to leave the said plaintiff very inadequate means of support, and that they have ill-treated the said plaintiff, with the said Chancellor's approbation, while residing on the said farm. The defendants deny that the said plaintiff never had any intention of giving the said Chancellor, his heirs, or either of them, any greater sum than to his other children, and that he never had any intention to divest himself of the control of his farm aforesaid, and that at the time of making the said writing, he was so enfeebled in body and mind that he did not fully comprehend and understand the terms of the same, and that the same was the act of the said Chancellor, and not of the said plaintiff, and was the effect of an undue influence exercised by the said Chancellor on the enfeebled intellect of the said plaintiff. But the defendants, further answering, say, that on the contrary thereof, the said contract was executed by the said plaintiff, freely and voluntarily, and while he was fully competent to execute the same. That the plaintiff fully understood the effect and meaning, &c., &c., [setting up various affirmative matters]. L. TREMAIN, Defendants' Attorney. (No. 10.) Counter statement in complaint, with general denial of allegations inconsistent therewith.1 Title of the Cause. The defendant, in answer to the plaintiff's complaint, alleges: That the agreement referred to in said complaint, and the only agreement on the subject made between the plaintiff and the defendant, was made on the day of -, in and by which agreement it was mutually agreed between the plaintiff and defendant, that, &c., [setting forth the counter statement], and not as in said complaint alleged. 1 Merely making a counter statement, or giving a different version of the matter from that contained in the complaint, without denying the allegations thereof, is not specifically controverting such allegations. (Wood v. Whiting, General Term, 21 Barb., 190.) The plaintiff's allegations, therefore, will be deemed admitted, unless put in issue by some such general or by a direct specific denial. The above form is frequently adopted, being usually inserted at the end of an answer, by way of caution. I am not aware of any adjudicated case which determines or indicates how far it may be available in an answer containing no other denial of the facts attempted to be put in issue. The better and safer course seems to be, to put the plaintiff's allegation at issue by a direct specific denial, and then set forth the counter statement or explanatory matter, as for example, The defendant denies that he made the agreement set forth in the plaintiff's complaint, but alleges that in and by the agreement referred to, and which was the only agreement made between the plaintiff and defendant, on the subject, it was agreed," &c., &c.; or to pursue the form heretofore used in equity pleadings, "The defendant denies that he made the agreement, &c., further or otherwise than as herein stated, that is to say," &c. (See Pleadings, 446, 447.) แ |