Opinion
May, 1897.
Henry B. Wesselman, for appellants.
C.F. Swart, for respondent.
The plaintiffs sue upon a judgment of the District Court for the city of Elizabeth, New Jersey, in their favor against defendant, for $38.60, entered September 28, 1896. The defense to the action was by answer, containing, among other averments, first, a statement that the defendant "has no knowledge or information sufficient to form a belief as to the allegations contained in the first and second paragraphs in the complaint;" and second, an allegation that the District Court for the city of Elizabeth had no jurisdiction over the subject-matter of the action.
The questions presented upon this appeal arise upon objections to the plaintiffs' proof, the justice having sustained the objections and given judgment for defendant. Respondent contends that plaintiffs were required to prove their copartnership and the jurisdiction of the New Jersey court, which were alleged in the first and second paragraphs of the complaint, and which it is assumed were put in issue by the answer. The form of the denial in the answer, while sufficient in a court of record, is not permitted in the District Courts of the city of New York. Code, § 2938; Consolidation Act, § 1347. The allegation that the defendant has no knowledge or information sufficient to form a belief is not authorized. Steinam v. Bell, 7 Misc. 318; Dennison v. Carnahan, 1 E.D. Smith, 144. It appears, therefore, that the jurisdiction of the New Jersey court and the allegation of copartnership were not put in issue, and plaintiffs were not bound to prove either. There was an affirmative defense of want of jurisdiction set up in the answer, but the burden of proving that defense rested upon defendant.
Notwithstanding that the allegations referred to were not at issue, plaintiffs offered in evidence the New Jersey statute, with the evident purpose of proving the creation and jurisdiction of the Elizabeth court. They thus assumed the burden of proving those allegations and judgment was rendered against them for failure of proof, objection being duly taken to the sufficiency of the proof, and a motion to dismiss the complaint was made on the grounds of want of proof of the judgment and of the statute. The justice was thus required to pass upon the issue tendered by plaintiff as to whether the judgment-roll was properly authenticated and the New Jersey statute was properly proved.
The authentication of the judgment-roll was complete. It was not necessary that the clerk's certificate should show that he had compared the copy with the original on file in his office and that the same was a true copy. Dunstan v. Higgins, 138 N.Y. 70. But the proof of the New Jersey statutes was not a compliance with the Code. There was no evidence that the volume of statutes was (1) published by authority, nor (2) that it was commonly admitted as evidence of the existing law, in the judicial tribunals of the state. Code, § 942. An attorney and counselor-at-law of the state of New Jersey was called and testified that he was acquainted with the laws of that state, and, having been shown the volume, stated that those were the general statutes of New Jersey; that they were the Revised Statutes of New Jersey. This was not proof of the fact required by the Code, and if the fact did not stand admitted by the pleadings the complaint would have been properly dismissed. As the error was one into which appellant has led his adversary by his own erroneous construction of the pleadings he can only have a new trial upon payment of the costs of appeal.
Judgment reversed and new trial ordered upon payment by appellants of costs of this court within thirty days; if costs are not paid judgment to stand affirmed, with costs.
McADAM and BISCHOFF, JJ., concur.
Judgment reversed and new trial ordered upon payment by appellant of costs of this court in thirty days. If costs are not paid, judgment to stand affirmed, with costs.