(5.) SUPPLEMENTAL Answer.' (No. 67.) Supplemental answer, by one of two joint endorsers, alleging separate judgment entered against his co-endorser since suit commenced, and the demand against defendant thereby extinguished.2 SUPREME COURT. Jared G. Bacon agt. John C. Cameron, impleaded with Allen Third. The said defendant, John C. Cameron, impleaded, &c., in addition to the answer heretofore put in by him in this action, then entitled James Hooker, plaintiff, against the abovenamed defendants, the full benefits and advantages of which answer the said defendant still claims and insists upon, and relies upon the allegations and 1 As to the nature, form and requisites of a supplemental answer, see Pleadings, 605-614. ? The answer is interposed, by one of two joint endorsers, to a complaint in an action on a promissory note. The note was endorsed by the defendant pleading, and the other defendant, Baker, who were partners, in the partnership name. After the commencement of the suit a separate judgment was taken by defendant, against the defendant Baker, which judgment, the defendant pleading insisted, was a merger and extinguishment of the demand in suit, within the cases of Robertson v. Smith, 18 John., 459; Reid v. Kerney, 5 Hill, 82, and cases there cited; Sherrill v. Loucks, 6 Barb., and cases there cited. As to whether a separate judgment may be regularly taken against one of two joint debtors, under the Code, see Parker v. Jackson, 16 Barb., 34; Harrington v. Higham, 15 Barb., 524; Shoefelt v. Brown, 10 How., 286; The Mechanics and Farmers' Bank v. Ryder, 5 How., 401; Fullerton v. Taylor, 6 How., 259. facts therein set forth in defence of this action, the same as though herein set forth in full, for a further and supplemental answer, by leave of the court, for that purpose had and obtained by order of the court, at, &c., on, &c., alleges and states, that subsequent to the time of putting in the said answer of defendant, and on or about the 3d day of March, 1854, the then plaintiffs in this action, George Gould and Elias Pattison, assignees, &c., who had been substituted by an order of this court as plaintiffs, in place of James Hooker, the original plaintiff therein, entered in the office of the clerk of the county of Rensselaer a judgment in this action on said promissory note against the defendant, Lorenzo D. Baker, for $1,597.33 damages, and $8.56 costs; and that said judgment remains in full force and effect, not reversed, annulled or set aside, as appears by the record thereof in said clerk's office. And the defendant avers, that at the time of the making and endorsement of said promissory note, this defendant and said defendant Baker were copartners in business, under the name and firm of Baker & Cameron, and that said endorsement of said note, alleged in said complaint, was made in the said copartnership name of Baker & Cameron, by said defendant Baker, and that this defendant did not severally endorse said note, or authorize any person to do so for him, either individually or in the use of the partnership name. Wherefore, by reason of said judgment against said Baker, this defendant alleges and insists that all or any liability of him, the said defendant, on said note or said endorsement thereof by Baker & Cameron, and all or any claim and demand therein which the plaintiff might otherwise have had against him, has become and is extinguished. S. & V. S., Defendant's Attorneys. PART V. REPLIES AND DEMURRERS. (1.) REPLIES. (No. 1.) Reply to counter-claim; general denial.1 SUPREME COURT-ALBANY COUNTY. Edward Van Ness Charles M. Tallman. The plaintiff in this action, for reply to the answer herein, says: That he has no knowledge or information sufficient to form a belief in respect to the allegations of new matter contained in said answer, and therefore denies each and every allegation of new matter contained in said answer. AMOS DEAN, Plaintiff's Attorney. 1 To Answer No. 58, Part IV., ante, p. 641. It is to be observed that in this particular case a reply is unnecessary, as the answer does not really contain a counter-claim. (See note, ante, p. 641.) The form, however, is proper as a general denial of ar answer which is really a counter-claim. The plaintiff, in reply to so much of the defendants' answer as sets up a counter-claim, denies: That he was indebted to the said James Aikin, in his lifetime, in the sum of $3,000, or in any other sum, for meat, drink, washing, lodging, board, medicine or medical attendance, alleged to have been furnished and provided by the said James Aikin to this plaintiff and his servants; and the plaintiff further denies, that the said James Aikin ever furnished or provided anything of the kind for this plaintiff or his servants. And this plaintiff further denies, that he was indebted to the said James Aikin in the sum of $3,000, or in any other sum, for the keeping, feed, board or pasturing of divers or any horses or colts, alleged to have been furnished and provided by said James Aikin; and he further denies, the said James furnished or provided anything of the kind. And this plaintiff further denies, that he was indebted to the said James Aikin in the sum of $3,000, or in any other sum, for money alleged to have been lent to, paid, laid out and expended for this plaintiff by the said James Aikin; and he denies that the said James ever lent, paid, laid out or expended any money whatever for him. To Answer No. 57, Part IV., ante, p. 638. And this plaintiff denies he is indebted to the said James Aikin, deceased, or to his executors, in the sums mentioned in said answer, or any or either of them, or any part thereof. And this plaintiff further denies, that the said James Aikin, in his lifetime, paid to this plaintiff whatever sums of money he may have owed this plaintiff, or have been indebted to him for any of the causes of action mentioned in the complaint. And he further denies that the said James has paid any part of said sums of money so mentioned. OLIN & GEER, Plaintiff's Attorneys. (No. 3.) Reply of set-off to defendant's counter-claim of set-off.1 SUPREME COURT. Thomas White Daniel Lucey. The above named plaintiff, in reply to the answer of the defendant, alleges: That on the 9th day of August, 1857, the said defendant made and delivered to one a promissory note, 1 To Answer No. 59, Part IV., ante, p. 642. As to whether a reply of set-off to an answer of set-off, may be properly pleaded under the Code, see Pleadings, 629, 630, and note. It is held by Justice MARVIN, in Miller v. Losee (9 How., 356), that it may be; and the reply in the text is in conformity with that decision. It may still be a question, however, whether, if the plaintiff's set-off exceeds the defendant's set-off, he would be entitled to recover the excess in addition to the amount claimed in the complaint. |