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McEncroe agt. Decker.
It is not necessary, I apprehend, to consider at length whether the eleventh and twelfth defenses, set forth in the answer are sufficient in law, for it is manifest, on inspection, that neither of them contains matter which constitutes a defense; the only way of sustaining them, is by attacking the sufficiency of the complaint, as was done by the counsel on the argument, though ineffectively as already shown.
The demurrer is well taken and must be sustained, with costs.
McENCROE agt. DECKER
Answer - effect of a verified answer upon a hearing of a contested applica
tion for an injunction – Effect of a denial of the allegation of the complaint, except as afterwards admitted to be true — Code of Civil Procedure, section 630.
In an action for a dissolution of a copartnership, it is almost a matter of
course to grant an injunction and appoint a receiver. Under section 630 of the Code of Civil Procedure, upon a hearing of a
contested application for an injunction order, or to vacate or modify
such an order, a verified answer has the effect only of an affidavit. Under this section the court has the power to determine the weight to be
given to the denial contained in the answer, in the same manner and to the same extent as it has to determine other questions arising upon
conflicting affidavits. Where the answer alleged that “the defendant denies each and every
allegation in the complaint contained, and not hereinafter specifically
admitted or denied, or not hereinafter specifically admitted or avoided:" Held, that a denial in this form is neither a general or specific denial, and
is a form of denial in no way provided for by the present system of pleading
Special Term, November, 1879.
L. L. Kellogg, for plaintiff.
Burton N. Harrison and A. Monell, for defendant.
McEncroe agt. Decker.
LAWRENCE, J.-If the agreement with Greenfield was not usurious, it certainly bears very much the appearance of being so, and I do not feel authorized on affidavits to declare that it is not usurious, even although the affidavits strongly deny the usury. The allegations of the plaintiff as to the insolvency of Greenfield and Decker do not seem to be denied by the defendants.
This being an action for a dissolution of a copartnership, it is almost a matter of course to grant an injunction and to appoint a receiver; and I am satisfied that the rights of all parties require that the injunction should be continued until the cause can be tried.
If it be contended that all the equities of the complaint are denied, the answer is two-fold — first, that under section 630 of the Code, upon a hearing of a contested application for an injunction order, or to vacate or modify such an order, a verified answer has the effect only of an affidavit.
This provision is stated by Mr. Throop, in his note, to have been designed to settle, in accordance with the weight of the authorities, the questions which have arisen in regard to the effect of an answer denying the equity of the complaint.
Under this section the court has the power, in my opinion, to determine the weight to be given to the denials contained in the answer, in the same manner and to the same extent as it has to determine other questions arising upon conflicting affidavits.
Second. The answers allege that “the defendant denies each and every allegation in the complaint contained, and not hereinbefore specifically admitted or denied, or not hereinbefore specifically admitted or avoided.”
A denial substantially in this form was held by the general term of this court in the case of Chamberlain agt. The American National Life and Trust Company, in May, 1877, to be neither a general or specific denial, and to be a form of denial in no way provided for by the present system of pleading (See, also, People agt. Snyder, 41 .V. Y., 397 and 400;
Donnelly agt. Jenkins et al.
People agt. Northern Railroad Co., 53 Barb., 98 and 122; and same case in court of appeals, 42 N. Y., 217).
Assuming this denial to be bad, very many of the allegations on which the plaintiff rests his claim to an injunction, and on which his right to an injunction depends, are left uncontradicted and undenied.
If, as a matter of fact, the work is now being proceeded with, the appointment of a receiver would protect the interests of all parties. If it has been stopped because it cannot be prosecuted at this season of the year, there will be no necessity for such an appointment, because the case can be tried at the January or the February special term. But as the appointment of a receiver is not asked for in the order to show cause, it is not necessary on this motion to pass upon the propriety of adopting that course.
The injunction is continued, with ten dollars costs to the plaintiff, to abide the event.
N. Y. COMMON PLEAS.
Ann DONNELLY, administratrix, &c., plaintiff and respondent,
agt. EDWARD O. JENKINS et al., defendants and appellants.
Negligence — when tenants of building not liable for accident occurring to
party by walking into elevator, and falling to ground floor --Contributive negligence.
Where there is an elevator in the hallway of premises used by different
tenants in common, which is inclosed, and has doors opening into the hallway on the first floor, upon which doors there are bolts for the purpose of fastening them, and a servant of a third person, lawfully on the premises, delivering goods to one of the tenants of the upper floors, mistakes the elevator for the stairs and walks into it, and falls through the aperture to the ground floor, receiving injuries which result in his
death: Held, in an action brought by his administratrix, that, as the elevator
was properly constructed and properly protected, the tenants on
Donnelly agt. Jenkins et al.
one floor are not liable for the negligent manner of use of the hatchway by the tenants on one of the other floors, and there being no affirmative proof showing specific acts of negligence on the part of any particular tenant, neither of the several tenants is liable, either severally or jointly with the others, for injuries resulting from such accidents.
General Term, January, 1880.
In February, 1873, the defendants were tenants of the building 233 William street, New York city.
The defendants, Dunham & Russell, were bookbinders, and tenants on the floor above the street. The defendant Jenkins was a printer, and tenant of the upper floors.
There was an elevator in the hallway of these premises, which was used by the tenants in common, and which was encased and had doors opening into the hallway, on the first floor, upon which were bolts for the purpose of fastening them shut.
On the 23d of February, 1873, John Donnelly, who was in the employ of the New York Printing Company, as their servant, came to deliver goods to Dunham & Russell, and, in some way, fell through the elevator hatchway into the lower floor, and was so injured that he subsequently died.
No one saw the deceased enter the building, or fall through the hatch way. Just at one side of the elevator is a stairway, which is partially concealed when the doors leading to the elevator are open, and it seems to be probable that the elevator doors had been left open, and the deceased, mistaking the elevator for the stairs, walked into it and fell through. This action is brought by the administratrix of the deceased against Dunham & Russell and Edward O. Jenkins, to recover damages, &c.
Theo. F. Miller, for defendants Dunham & Russell.
Wm. H. Arnoux, for defendant Jenkins.
Geo. H. Hart, for plaintiff.
Donnelly agt. Jenkins et al.
Van Brunt, J. — We cannot hold, under the evidence in this case, that the maintenance of this elevator in the building was, in itself, a nuisance. The evidence shows that the elevator was properly inclosed, and that it was provided with doors which were to be kept shut when the elevator was not in use, and which were a reasonably effectual protection against accidents; and if, under the circumstances of this case, the deceased opened the door of this elevator before he fell through it he undoubtedly was guilty of contributive negligence. If the doors were shut the stairs were in full sight, and he knew of the fact of an elevator being there as he had been upon the premises for the delivery of goods some three times before. If, however, the elevator door was left open it partially concealed the stairs, and the deceased may have naturally made the mistake in supposing that the door to the elevator was the door to the stairway. In such a case the negligence by which the deceased lost his life would be the leaving the door of the elevator
It seems to be reasonably clear that as the elevator was properly constructed and properly protected for accidents arising from negligent use, the defendants Dunham & Russell would not be liable for the negligent use of the hatch way by Jenkins, and vice versa. In the case of Totten agt. Phipps (52 N. Y., 354) the defendants had entire and exclusive charge of the trap-door, and had been accustomed to shut it down in the evening. The deceased was a tenant of the upper floors, and had an easement over the hallway in which this trap-door was situated. In the night going to his premises, the trap door being left open, the deceased fell through and was killed. The court held that the deceased had a right to assume that the trapdoor was, as usual, closed, and that going upon the premises, as he had a right to do, at night, he was not guilty of negligence in acting upon that assumption, and that the defendants were guilty of negligence in leaving the trap-door open.
That case is distinguishable from the one at bar, in the fact that, in the case cited, the defendants, who were members of