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Not only is a remedy found in an action at law, but in that case each surety is bound to contribute his proportional share, and no more. In Easterly v. Barber, 66 N. Y. 433, the rule is taken from Parsons on Contracts that:

"At law, a surety can recover from his cosurety an aliquot part, calculated upon the whole number, without reference to the insolvency of others of the cosureties; but in equity it is otherwise."

The necessity of resorting to a court of equity may arise, because some of the sureties are beyond the jurisdiction of the court, or are insolvent. In that case, the one asking for contribution is entitled to it, measured by the number of solvent sureties within the process of the court. Easterly v. Barber, supra; Jewett v. Maytham, 64 Misc. Rep. 488, 118 N. Y. Supp. 635. There may be other occasions for the interposition of a court of equity, but in the present instance the assistance of that .court has not been invoked for any purpose, and inasmuch as there are two sureties it is not apparent in what way it could be helpful. Upon principle under such circumstances a court of law should have jurisdiction. For in Bradley v. Burwell, 3 Denio, 61, 66, it is said:

"The right of action as between the sureties grows out of the original implied agreement that, if one shall be compelled to pay the whole or a disproportionate part of the debt, the other will pay such sum as will make the common burden equal."

The declaration in that case was in assumpsit. There is, then, the implied agreement upon which the action rests; the action is, in form, one at law; the rights of two persons only are involved, and, so far as the complaint shows, the issue is whether the defendant as a cosurety should pay one-half of the debt. Inasmuch as an action at law may be maintained, and the complaint is conformed to such action, and as it does not appear that there is any issue requiring the aid of the court of equity, the defendant is, so far as the record shows, entitled to trial by jury.

This requires a reversal of the order, without costs, and without prejudice to the plaintiff to apply for trial at Special Term, should an issue triable by that court arise. All concur.

FERBER v. THIRD STREET REALTY CO. et al.

(Supreme Court, Appellate Division, Second Department. March 26, 1915.)

1. PLEADING O94-DEFENSES-SEPARATE DEFENSES.

Each separate and distinct defense must be complete in itself.
[Ed. Note.-For other cases, see Pleading, Cent. Dig. $8 191, 192; Dec.

Dig. Omn 94.]
2. PLEADING C8-CONCLUSIONS-ACTION ON NOTE.

Where it failed to deny the averments of the complaint that plaintiff was a bona fide holder for value, a separate defense in an answer alleging that plaintiff was not the real holder and owner of the notes in due

course, but that others were the real parties in interest, is subject to w for other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Inderes

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demurrer; its averments being only conclusions of law, and not raising an issue as against the admission that plaintiff was a bona fide holder.

(Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 12-2842, 68;

Dec. Dig. 8.]
3. BILLS AND NOTES C480-ACTIONS--ANSWER.

Where the complaint alleged that plaintiff acquired the note from the payee, a bona fide holder, a separate answer, denying that plaintiff was the owner and holder of the note, and averring that it was transferred without consideration, raises no defense, as the original holder could pass good title to the note without receiving consideration.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. $8 1526– 1529; Dec. Dig. ww 180.]

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Appeal from Special Term, Richmond County.

Action by Blanche J. Ferber against the Third Street Realty Company and others. From an order overruling a demurrer to the answer, and denying plaintiff's motion for judgment on the pleadings, plaintiff appeals. Order reversed.

Argued before JENKS, P. J., and BURR, CARR, RICH, and PUT-
NAM, JJ.

Arthur O. Townsend, of New York City, for appellant.
Henry Goldstein, of New York City, for respondents.

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BURR, J. Plaintiff brings this action on a promissory note made by the Third Street Realty Company to the order of Robert L. Ireland for $1,000, payable four months after date. The complaint alleges that defendants Robert L. Ireland, the payee of the note, and John De C. Ireland, before the maturity of the said note, for value, indorsed and delivered the same to the plaintiff, who is now the owner and holder thereof. The complaint further alleges nonpayment thereof. The maker of the note interposed an answer in the following form:

**First. This defendant has no knowledge or information sufficient to form a belief as to the allegations contained in the third' paragraph of the complaint, that the plaintiff is now the owner and holder of the note in the complaint mentioned, or that the same was delivered to her for value, as in said paragraph third of the complaint set forth.

“Second. Further answering said complaint, and as a further separate and distinct defense thereto, this defendant alleges, on information and belief, that this plaintiff is not the real and lawful holder and owner of said note in due course, nor the real party in interest, but that Arthur 0. Townsend and A. H, Ferber are the real parties in interest."

Plaintiff demurred to the "further separate and distinct defense" for insufficiency, and moved for judgment on the pleadings, and also moved to set aside an ex parte order directing the trial of the issues in said action. Her motion was denied, and she now appeals.

[1,2] The second paragraph of the answer, which is stated as a separate and distinct defense, is bad. Each separate and distinct defense must be complete in itself. By failure to deny, the allegation of the complaint, that the payee of the note, before maturity and for value, indorsed and delivered the same to plaintiff, stands admitted. In the face of such admission, the allegation in this clause of the answer that “this plaintiff is not the real and lawful holder and owner of said For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

152 N.Y.S.-23

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note in due course, nor the real party in interest, but that Arthur O. Townsend and A. H. Ferber are the real parties in interest,” states only a conclusion of law. Twelfth Ward Bank v. Brooks, 63 App. Div. 220, 71 N. Y. Supp. 388; Wenk v. City of New York, 82 App. Div. 584, 81 N. Y. Supp. 583. In Twelfth Ward Bank v. Brooks, supra, the third defense in the answer, after attempting, but failing, to properly allege payment of the note, did allege:

"That the plaintiff is not the real party in interest, that the action is not brought for the benefit of the plaintiff, that the defendant Quincy was and is the owner and holder of the note, and that the action is brought for the benefit of said Quincy."

The court in its opinion said:

"By not denying, the defendant admits that the title to the note was transferred to the plaintiff, and without setting up facts to avoid the effect of such an admission, and to show the transfer of the note from the plaintiff to the defendant Quincy, he cannot raise an issue of fact by the affirmative statement of conclusions of law. The facts must be alleged from which such conclusions of law could have been drawn."

[3] For a like reason—that is, failure to deny the transfer of the note to plaintiff—the denial in the first paragraph of the answer that "plaintiff is now the owner and holder of the note in the complaint mentioned” is insufficient. If it were true that the note was not transferred for value, this would constitute no defense. Ireland, as owner and holder of the note in due course, as between plaintiff and defendant, the maker thereof, had a perfect right to transfer the same without consideration. Ludlow v. Woodward, 117 App. Div. 525, 102 N. Y. Supp. 647; Queen City Bank v. Hudson, 8 App. Div. 27, 40 N. Y. Supp. 1018.

We think, therefore, that the demurrer to the separate defense of the answer should have been sustained, and the motion of plaintiff for judgment on the pleadings should have been granted, and the order directing the trial of the issues raised by the answer should have been set aside.

The order denying this relief must be reversed, with $10 costs and disbursements, and the motion for judgment on the pleadings, and to vacate the order directing the trial of the issues, must be granted, with $10 costs. All concur.

VADER V. JOHN SCHLEICHER CO. et al. (Supreme Court, Appellate Division, Second Department. March 26, 1915.)

PLEADING Cm 238—APPLICATION FOR LEAVE TO AMEND-AFFIDAVIT.

Where defendants' application for leave to file a second amended answer was supported only by their attorney's affidavit, showed no reason why it was not made by defendant, failed to show personal knowledge of the attorney as to the facts to be pleaded, and excused the late filing because the attorney was unable to communicate with the defendants and was compelled to serve the original answer, without sufficienć information, the motion was improperly granted, there being no affidavit of

merits executed by the defendants, and no showing that within 20 days em For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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after service of the original answer the attorney was unable to com-
municate with his clients, or that within such time he did not learn of
the facts to be pleaded.

(Ed. Note.-For other cases, see Pleading, Cent. Dig. $$ 602, 620-625;
Dec. Dig. Om 238.)
Appeal from Special Term, Westchester County.

Action by Sarah A. Vaden against the John Schleicher Company and
John Schleicher. From an order granting defendants permission to
serve a second amended answer, plaintiff appeals. Reversed.

Argued before JENKS, P. J., and THOMAS, STAPLETON,
RICH, and PUTNAM, JJ.

A. B. Morrison, of New York City, for appellant.
Edgar C. Beecroft, of New York City, for respondents.

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RICH, J. The action is brought to foreclose a mortgage. The original answer was a general denial and contained a separate defense of extension. It was served on September 28, 1914. On October 20th following an amended answer was served, setting forth the same defenses and a counterclaim for $6,300, to which the plaintiff replied on the same day. On November 28th following the defendants moved, 11pon the affidavit of their attorney, for leave to serve a further amended unverified answer, alleging an additional counterclaim of $14,350, and for an order permitting all questions of fact involved to be stated for trial by jury, pursuant to the provisions of section 970 of the Code of Civil Procedure.

The affidavit shows no reason why it was not made by one of the defendants, it fails to show any personal knowledge of the attorney as to the facts sought to be pleaded, and it states as the only reason for asking permission to serve a further amended pleading that, before serving the amended answer, the attorney was unable to communicate with the defendants and was compelled to serve it without sufficient information, in consequence of which the amended answer as served was incomplete, in that the counterclaim of $14,350 was omitted. No reason is disclosed, however, why all of the facts could not have been ascertained before the pleading was served. There is no affidavit of merits, and it is not shown that within 20 days after the service of the amended answer the attorney was unable to communicate with one or both of his clients, or that within that period of time he did not learn the facts connected with such counterclaim. For these reasons the moving affidavit was insufficient. Lane v. Smyer, 157 App. Div. 889, 141 N. Y. Supp. 1128; Quarantiello v. Grand Trunk Railway Co., 145 App. Div. 138, 129 N. Y. Supp. 109; Mutual Loan Ass'n v. Lesser, 81 App. Div. 138, 80 N Y. Supp. 1112; Henry & Co., Limited, v. Talcott, 89 App. Div. 76, 85 N. Y. Supp. 98.

The proposed pleading should have been verified (Driscoll v Parker Pen Co. (Sup.] 141 N. Y. Supp. 251), and the failure to serve the amended answer within the time allowed by law should have been explained and excused (Jacobs v Mexican Sugar Refining Co., Limited 115 App. Div. 499, 101 N. Y. Supp. 320; Pratt, Hurst & Co., Limited, EwFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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v. Tailer, 99 App. Div. 236, 90 N. Y. Supp. 1023; rule 23 of the General Rules of Practice).

I am of opinion, also, that the amendment should not have been allowed, except upon substantial terms.

The order, in so far as appealed from, is reversed, with $10 costs and disbursements, with leave to the defendants to renew their motion upon additional papers, if so advised. All concur.

BARKER V. BARKER et al.

(Supreme Court, Appellate Division, Second Department. March 19, 1915.)

1. PARTITION Ow70-ISSUES-VALIDITY OF DEED.

The issue of fact arising on the pleadings, as to validity of deeds made by the ancestor of plaintiff and of certain defendants, is a proper one in an action for partition.

(Ed. Note. For other cases, see Partition, Cent. Dig. $ 193; Dec. Dig.

Ow70.) 2. JURY 28-WAIVER OF RIGHT-ADJOURNMENTS.

Right to trial by jury, under Code Civ. Proc. $ 970, of an issue of fact arising on the pleadings, is not waived by plaintiff securing adjournments when the case appeared on the Special Term calendar; he not having noticed it for trial thereon.

[Ed. Note.—For other cases, see Jury, Cent. Dig. 88 176–196; Dec. Dig. Ons 28.)

Appeal from Special Term, Westchester County.

Action by Charles A. Barker against Willie C Barker and others. From an order, plaintiff appeals. Reversed, and motion granted.

Argued before JENKS, P. J., and BURR, CARR, RICH, and PUT. NAM, JJ.

Michael J. Tierney, of New Rochelle, for appellant.

William S. Beers, of New Rochelle (J. Addison Young, of New York City, on the brief), for respondents.

CARR, J. This is an appeal by the plaintiff from an order, made at Special Term in Westchester county, denying his motion to strike the case from the Special Term calendar on his demand for a jury trial.

[1] The action was in partition. The issue of fact arose on the pleadings as to the validity of certain deeds made by the ancestor of the plaintiff and some of the defendants. This issue was proper in an action for partition. Curran v. Hosey, 153 App. Div. 557, 138 N. Y. Supp. 910.

[2] The plaintiff did not notice the case for trial on the Special Term calendar. No issues had been framed. Section 1544 of the Code of Civil Procedure, relating to actions for partition, provides as follows:

“An issue of fact joined in the action is triable by a jury. Unless the court directs the issues to be stated, as prescribed in section 970 of this act, the issues may be tried upon the pleadings."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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