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(182 N.Y.S.)

keep its agreement for the delivery of the car in question to the Grand Trunk in time to be attached to train 427.

These considerations lead this court to the conclusion that the judgment appealed from should be reversed. The City Court Act empowers this court, not only to reverse, but to render such a judgment on the facts as justice and law requires.

The judgment in favor of the defendants and against the plaintiff is therefore reversed and set aside, and in its place and stead an affirmative judgment in favor of the plaintiff against the defendants is directed for the sum of $238.42, with interest thereon from the 15th day of August, 1916, together with costs to be taxed.

So ordered.

(191 App. Div. 689)

BRUGGEMANN v. BRUGGEMANN.

(Supreme Court, Appellate Division, Second Department. May 7, 1920.) 1. Divorce ~213—Wife living in same house as husband held not entitled to temporary alimony.

Where wife and child, at time of wife's divorce action, were living in same house as husband, and there was no proof, on application for temporary alimony, that such residence was involuntary, or that they were not afforded maintenance according to their station in life, wife was not entitled to temporary alimony.

2. Divorce

225-Wife held entitled to counsel fee.

In wife's action for limited divorce, where husband intends to raise the question of jurisdiction at the trial, wife was entitled to a counsel fee, though at time of application she lived in same house as husband, and there was no proof of failure to receive proper maintenance.

3. Divorce 108-Question of jurisdiction may be raised at trial.

Husband, being sued for limited divorce, may raise question of jurisdiction at the trial.

Appeal from Special Term, Kings County.

Action by Constance V. Bruggemann against August Bruggemann. From an order requiring defendant to pay to plaintiff counsel fee and alimony during the pendency of the action, defendant appeals. Affirmed, as modified.

Argued before JENKS, P. J. and MILLS, RICH, PUTNAM, and BLACKMAR, JJ.

Frederick F. Neuman, of New York City (Franklin Waldheim, of New York City, on the brief), for appellant.

Abner Greenberg, of New York City, for respondent.

JENKS, P. J. This action is for a limited divorce for cruel and inhuman treatment. The Special Term made an order for temporary alimony of $40 a week and for a counsel fee of $250.

[1-3] When the plaintiff made this application she and her tender infant were living in her husband's house, where her husband lived also. It is true that the woman deposes that she had been ordered to "get * * out" of her home; but she is not corroborated, and

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she does not specify either time or circumstance. If such an order was given, evidently she felt secure to disobey it; and for aught that appears her stay is voluntary and neither degrading nor dangerous. If the affidavit of her husband is to be credited, her abode in the home is agreeable to him, aside from its effect upon this litigation or the saving of his money. There is no proof that the woman and the child are not afforded maintenance in this house according to the station of life of the parties. The purpose of alimony is support. Turner v. Woolworth, 221 N. Y. 429, 117 N. E. 814. It should be denied in this case. Smith v. Smith, 92 App. Div. 442, 87 N. Y. Supp. 137. I do not advise a denial of any counsel fee especially as the defendant intends to raise the question of jurisdiction, which he may do at trial (Gray v. Gray, 143 Ñ. Y. 354, 38 N. E. 301); but I think that only $100 should be allowed.

The condition of the Special Term calendar affords a trial forthwith, if both parties are anxious for a disposition of the issue upon the merits. I venture the opinion, formed upon the papers, that mutual forbearance and concession might restore harmony in this home, and keep the parties out of the divorce court. It is hard to credit that the single act of violence specified in the complaint, accompanied by the words alleged, occurred on the very day that the wife bore the infant child which is the sole issue of the marriage. Such deed and words are not natural to the husband as he reveals himself in his affidavit, which strikes me as frank and truthful.

The order is modified, by striking out the provision for alimony pendente lite, and by allowance of a counsel fee of $100 only, without costs to either party. All concur.

W. N. STEVENSON & CO., Inc., v. VIETOR et al.

(Supreme Court, Special Term, New York County. May 19, 1920.)

1. Pleading 192 (4)—Hypothetical answer is demurrable.

An answer alleging that, if any contract was made, which defendants deny, one term thereof required plaintiff to pay an increased price, is hypothetical. and is insufficient in law on its face, and is subject to de

murrer.

2. Pleading 194 (1)—Denial of contract held insufficient to save hypothetical answer.

In an answer alleging that, if any contract was made, which defendants deny, for the delivery of goods, its terms differed from those alleged by plaintiff, the denial is neither a general nor special denial, such as is authorized by the Code, and is therefor insuflicient to make the answer good as against demurrer.

Action by W. N. Stevenson & Co., Incorporated, against Carl Vietor and others. On demurrer to the separate defenses contained in the answer, brought on by the plaintiff as a contested motion. Demurrer sustained.

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(182 N.Y.S.)

Austin, McLanahan & Merritt, of New York City (H. Preston Coursen, of New York City, of counsel), for the motion.

Rosenberg & Ball, of New York City (George G. Ernst, of New York City, of counsel), opposed.

GIEGERICH, J. [1] The question presented by this demurrer, which has been brought on for trial as a contested motion, is whether a hypothetical defense is bad against a demurrer for insufficiency. The complaint alleges that the defendants sold to the plaintiff certain goods, but failed to deliver them, and demands damages. The answer denies each and every allegation of the complaint, except the incorporation of the plaintiff and that the defendants are copartners, and then, for a separate defense, alleges that during the course of certain negotiations the defendants delivered to the plaintiff a memorandum, a copy of which is set forth in the complaint, and that at that time the goods which were the subject of negotiation, and which were referred to in the memorandum, were not in existence, but were to be manufactured, and "that if any contract was made between the plaintiff and defendants for the delivery of such goods, which defendants deny, one term thereof was that, if the cost of manufacturing such goods should be increased by reason of an increase in the cost of labor entering into the production thereof, then the price to be paid by the plaintiff therefor should be increased by the amount of any such increased cost of manufacturing," and that there was such an increased cost, and that the plaintiff refused to pay such increase and that the defendants were therefore released from their obligation, if any, under the alleged agreement. The briefs cite decisions for and against the proposition that a hypothetical defense is demurrable for insufficiency. There seems to be no disagreement among the authorities that such hypothetical pleading is bad pleading, but there is a difference as to whether or not the defect can be reached by demurrer. In Stroock Plush Co. v. Talcott, 129 App. Div. 14, 113 N. Y. Supp. 214, the cases were cited and discussed and the conclusion was reached that a defense which is not positive, but only contingent or hypothetical, is insufficient in law on its face, and therefore subject to demurrer.

[2] I am not overlooking the fact, which is not discussed at all in the briefs, that this defense contains something that at first glance looks like a denial; but I do not think that a denial of "any contract" for "such goods" is either a general or specific denial such as is authorized by the Code, and is therefore ineffectual to save the defense, otherwise insufficient, against the demurrer.

The plaintiff's motion to sustain its demurrer is therefore granted, with $10 costs, with leave to the defendants to amend upon payment of such costs. Settle order on notice.

In re DENHAM'S ESTATE.

(Surrogate's Court, New York County. June 23, 1917.)

1. Executors and administrators 85 (1)-Purpose of discovery not to secure information about chose in action belonging to deceased.

A discovery proceeding is designed for the purpose of discovering specific property or specific money belonging to deceased, and where it is admitted that the object of the proceeding is to secure information about property which is incapable of delivery, such as a chose in action, the proceeding should end.

2. Executors and administrators 85 (1)-Discovery in probate court not used to discover evidence to be used in another action.

A discovery proceeding in the probate court cannot be used for the purpose of ascertaining and discovering evidence to be used in another action or proceeding.

In the matter of the estate of one Denham. On motion to vacate order in discovery proceeding. Motion granted.

See, also, 174 Ń Y. Supp. 883; 107 Misc. Rep. 71, 175 N. Y. Supp.

726.

COHALAN, S. [1, 2] The petitioners in the discovery proceeding admit in the brief filed in their behalf that

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"The object of this inquiry is to obtain information concerning 'property [a chose in action] which should be included in the inventory and appraisal.'"

It has been repeatedly held and is still the law that a discovery proceeding is designed

"for the purpose of discovering specific property or specific money in coin and bank bills belonging to the deceased and withheld, on which discovery they may be ordered delivered summarily, but the provisions do not contemplate the collection of a debt by summary process." Matter of White, 119 App. Div. 140, 103 N. Y. Supp. 868.

Where it is admitted that the object of the proceeding is to secure information about property which is incapable of delivery, an examination is unnecessary, and the proceeding should end. A discovery proceeding in this court cannot be used for the purpose of ascertaining and discovering evidence to be used in another action or proceeding.

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Motion to vacate order granted. Settle order on notice.

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(182 N.Y.S.)

Partnership

In re BEREL'S ESTATE.

(Surrogate's Court, Bronx County. February, 1919

(Syllabus by the Court.)

254-Evidence held to show that surviving partner and executor of deceased partner paid adequate price for decedent's interest; petitioner surcharged with interest on purchase price.

The objections in an accounting raised the issue as to the adequacy of the sale price paid by a surviving partner, the petitioner, who was also the executor of the testator's will, on the ground that the sale price paid for testator's interest in the firm was insufficient, and that the sale did not include the testator's share in the good will of the business. The testimony analyzed, and held, that the petitioner had sustained the burden upon him of showing that the sale price was a fair one; that the partnership business had no good will with which the petitioner was chargeable; but that the petitioner, under the circumstances, should be surcharged with interest on the purchase price from the date of the sale at the rate of 6 per cent. per annum, compounded annually.

Contested proceeding on the judicial settlement of the account of the executor of Martin Berel, deceased. Executor surcharged with interest on proceeds of sale of decedent's interest in partnership business from date of sale at 6 per cent.

Lewis & Schaap, of New York City, for executor.

Henry W. Fried, of New York City, for legatees and objectors.

SCHULZ, S. This was a contested accounting, in which a hearing was had before the court. The answer of the contestants contained seven specific objections. Prior to the hearing a stipulation was entered into by which, among other things, it was agreed that—

"Should it be determined that the amount paid for the deceased's interest was a fair and reasonable value therefor, then the other objections, except objection VII, that the executors should be chargeable with interest, are withdrawn."

The objections which raise an issue as to the adequacy of the sale price, and which must therefore be first considered, are the second, to the effect that the sale price of the interest of the decedent in the firm in which the accounting executor and decedent were parties is insufficient, and the third, that the sale of the interest of the decedent did not include his share in the good will.

The evidence taken upon the hearing was voluminous, and an analysis of the same in this opinion would extend it unnecessarily and serve. no useful purpose. It appears, however, that the accounting executor gave the contestants access to the books of the copartnership, and after an examination thereof nothing has been produced before me to impeach or contradict the testimony offered on behalf of the accounting executor in any way, except a statement made to a mercantile agency. This statement, which was made by the accounting executor during the lifetime of the decedent, is stated by him to have. been "false" and "padded," and appears incorrect from an examination

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