Wheeler agt. Maitland and others. SUPREME COURT. WHEELER agt. MAITLAND and others. Motions in a cause triable out of the first judicial district, cannot be made in that district. (Code, § 401.) When an action, commenced and made triable in one county, is referred for trial to a referee residing in another county, and so described in the order, the place of trial is not thereby changed. The place of residence is merely descriptio persona of the referee. The intention of the court to change the place of trial of a cause, will not be inferred from a reference to a person residing in another county than that in which it would otherwise be triable. Especially will such an inference not be made in a suit local in its character, as for the foreclosure of a mortgage. New-York Special Term, Dec., 1855. MOTION, in the first judicial district, in a suit to foreclose a mortgage on land in Orange county, being the second judicial district; the case having been referred for trial to a referee in the first district, and the trial, having proceeded, being now in progress therein. FORBES, SEDGWICK & NYE, for plaintiff. W. H. TAGGART, for defendant, Maitland. PEABODY, Justice. This is a motion by defendant for a commission to examine a witness abroad, and for a stay of plaintiff's proceedings a reasonable time for the execution of it. The suit is brought to foreclose a mortgage on land in Orange county, being in the second judicial district, and the venue is laid in that county. It has been, by consent of the parties, referred for trial to a referee residing in the city of New-York. This reference, it is claimed by the moving party, makes the case within § 401 of the Code, triable in the first judicial district, and authorizes the making of this motion here. Indeed, it was urged on the argument that the court in the second dis Wheeler agt. Maitland and others. trict had denied this motion, or refused to hear it, on the ground that this reference changed the place of trial, and made this the proper county in which to move. A clause of § 401 provides that, "no motion can be made in the first district in an action triable elsewhere." So that this motion is not properly made here, unless it appears that the cause is not triable elsewhere than in this district. It seems to me quite clear, that this is not the fact within the meaning of the Code, and that this case is triable elsewhere than in this district, and, indeed, is not, within the meaning of the Code, triable here. I cannot doubt that this referee can properly hear it in Orange county, or that it is within the meaning of the Code triable therein. It is in its nature local, and it is provided by the Code, § 123, that it "must be tried in the county in which the subject of the action, or some part thereof, is situated." There is much more ground to doubt the power of the referee to try the cause out of Orange county; and, indeed, without the assent of the parties, it is pretty clear he could not try it elsewhere than in that county, or, at least, that the order of reference does not confer the power. Then, mere terms of the order of reference "to Stephen Cambreling, Esq., of the city of New-York," are quite insufficient to authorize it. It is probable that a sufficient assent to the place of trial in this cause, may be derived from the attendance of the parties before the referee, and proceeding with the trial, from time to time, in this county without objection. This, however, would not authorize the making of this motion here. No such assent to the place of making this motion is shown, or to be inferred, (even if such assent would be effectual,) for the plaintiff appears and expressly dissents; and it can hardly be pretended that he, by permitting the reference to proceed here, has not only assented to changing the county, where other proceedings are to be had, but has so bound himself, in this respect, that he is estopped to make the objection on this motion. If the court in the second district have intimated, as the counsel understood, it was probably on a very hasty and im Chapman agt. Palmer and Tilton. perfect statement of the case, such as must occur at times in the pressure of business on counsel and courts; that court hardly intended to decide that the order referred to operated to change the place of trial, and render the case not triable in Orange county; and I am not, therefore, I am sure, uttering an opinion in conflict with any decision intended to be made there, which it would become me to do, if at all, with great diffidence. The motion, therefore, must be denied, but with liberty to defendant to review it elsewhere, as he may be advised. SUPREME COURT. ISAAC A. CHAPMAN agt. PHILIP PALMER and HENRY TILTON. An answer (verified) by one defendant, sued as a partner with another, which states that the defendant "has not any knowledge or information sufficient to form a belief, whether the plaintiff sold and delivered to the defendants the several parcels of goods mentioned in the complaint, or any of them, or whether the sums mentioned in the complaint, or any of them, are due to the plaintiff from the defendants, and unpaid by them; and he therefore denies the same in each and every particular thereof"-must be struck out as evasive and frivolous. The defendants' ignorance is quite unnecessary. Albany Special Term, Dec., 1855. MOTION for judgment on account of frivolousness of answer. The action was for goods sold and delivered to the defendants, as partners, by the plaintiff. The complaint set forth three different purchases, amounting in the whole to $162.85, and stated that the defendants had paid $75 on account of such purchases. The balance, amounting to $87.85, with interest, the plaintiff claimed to recover in this action. The defendant Palmer, though served with summons and complaint, did not answer. The defendant Tilton, put in an answer, stating that "he had not any knowledge or informa Chapman agt. Palmer and Tilton. tion sufficient to form a belief, whether the plaintiff sold and delivered to the defendants the several parcels of goods mentioned in the complaint, or any of them, or whether the sums mentioned in the complaint, or any of them, were due to the plaintiff from the defendants, and unpaid by them; and he therefore denied the same in each and every particular thereof." J. B. STURTEVANT, for plaintiff. OTIS ALLEN, for defendant Tilton. HARRIS, Justice. I have no hesitation in pronouncing this answer evasive and frivolous. The allegation in the complaint is, that the plaintiff, at different times during the present year, sold and delivered to the defendants, as partners, certain goods. Whether or not this allegation is true, the defendants may be reasonably supposed to know. One of them, by his failure to answer, admits that it is true. The other says, that for the want of any knowledge or information on the subject, he is unable to say whether it is true or not. As the answer is verified by the oath of the defendant, we are, perhaps, required to believe that this is so. But if it be really so, the defendant's ignorance is quite unnecessary. Intentional ignorance is not such as the legislature had in view, when it authorized a defendant to put in issue any allegation of a complaint when he had no knowledge or information as to its truth, by stating such ignorance. The defendant who has answered, if he did not in fact know whether his partner or his clerks had purchased the goods of the plaintiff, as alleged, was bound, before answering, to inform himself on the subject. This he could have done by simple inquiry. If he has omitted such inquiry, he is wilfully ignorant of what it was his duty to know. If there was anything to prevent his informing himself, as to the facts alleged in the complaint, he should have stated what it was, by way of excusing himself for this mode of answering. In the absence of any such excuse, he must, as one of the partners, to whom the goods are alleged to have been sold, be held to be chargeable with such knowl M'Mahon, adm'r, &c., of Ruth S. Harrison, dec'd, agt. Allen. edge or information on the subject, as would enable him to admit or deny the allegation. The answer, that he has no such knowledge or information, must be regarded as an evasion. (See Edwards agt. Lent, 8 How. 28; Richardson agt. Wilton, 4 Sand. 708; Wesson agt. Judd, 1 Abbott, 254; Thorn agt. N. Y. Central Mills, 10 How. 19; Shearman agt. N. Y. Central Mills, 1 Abbott, 187.) The motion must be granted, with costs. NEW-YORK COMMON PLEAS, DENNIS M'MAHON, JR., administrator with the will annexed of RUTH S. HARRISON, deceased, agt. THOMAS E. ALLEN. Where the plaintiff brought his suit against the defendant individually, to recover moneys which he alleged the defendant received while acting as the agent, or attorney in fact, of JH, executor of RS. H, whose estate the plaintiff claimed as administrator de bonis non, &c.; and, pending the action, letters testamentary were granted to the defendant upon the will of the said J-H. Thereupon the plaintiff moved to amend his complaint, by making the executor (the defendant in his representative capacity) of J— - H— a party defendant, alleging that a complete determination of the controversy could not be had without the presence of such executor. Held, (passing over the delay, which was considered fatal,) that if the plaintiff was entitled to recover at all, he was so entitled when his suit was commenced. If he was not so entitled when he commenced the suit, facts subsequently occurring could not be introduced either by amendment or by supple mental complaint to make a title to recover. Besides, a judgment against the defendant, individually, would prejudice no one but himself; and a judgment in his favor would prejudice no person not a party to the suit, not duly represented by the plaintiff. "When a complete determination of the controversy cannot be had without the presence of other parties"-means, that there are persons, not parties, whose rights must be ascertained and settled before the rights of the parties to the suit can be determined. And there are other cases in which a defendant may |