
    Harris Blum, David B. Blum and Hyman Blum, Doing Business under the Firm Name and Style of Harris Blum & Sons, Appellants, v. Louis Jurick, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Pleadings — motion for judgment on — answer — action upon account stated and one for money loaned joined in same complaint—construction.
    Where the answer, in an action upon an account stated and one for moneys loaned joined in the same complaint, contains no denials but as an affirmative defense alleges “ that defendant delivered to the plaintiffs and the plaintiffs received from him for and on account of said debt ” defendant’s promissory notes payable to plaintiffs or order, which notes “ were partly to cover the alleged debts and partly for goods or cash advancement which plaintiffs might buy or make in New York * '* *, and that thereafter plaintiffs had said notes cashed with the correspondent of defendants * * * and procured the face value for them, thus reimbursing themselves and having the alleged indebtedness paid in full,” and then counterclaims for the balance of the face value of the notes over the amount of the alleged indebtedness, the answer and counterclaim taken at its face value is meaningless, but if, disregarding form, it be treated as meaning that the notes were discounted by plaintiffs with a bank which happened to be the correspondent of defendant, it sets up no defense of payment, and an order denying plaintiffs' motion for judgment on the pleadings will be reversed and the motion granted with leave to defendant to plead over.
    Guy, J., dissents.
    Appeal by plaintiffs from an order of the City Court of the city of New York, denying their motion for judgment upon the pleadings.
    Burnstine & Geist, for appellants.
    Sol Friedland, for respondent.
   Bijur, J.

The complaint sets out two causes of action; one on account stated and one for moneys loaned. The answer contains no denials but an affirmative defense alleging “ that defendant delivered to the plaintiffs and the plaintiffs received from him for and on account of said debt ” defendant’s promissory notes payable to plaintiffs or order, which notes “ were partly to cover the alleged debts and partly for goods or cash advancement which plaintiffs might buy or make in New York * * *, and that thereafter plaintiffs had said notes cashed with the correspondent of defendant * * * and procured the face value for them, thus reimbursing themselves and having the alleged indebtedness paid in full. ’ ’ The answer then sets up a counterclaim for the balance of the face value of said notes over the amount of such indebtedness.

It seems to me to be evident that defendant has sought by these allegations to convey the- impression that he claims that the debt was paid in some way by the defendant — but without alleging that fact. He does not say that the notes were given or received in payment of the debt; but tries to convey that impression by saying that they were given and received ‘ for and on account of said debts.” Whatever inference might, however, be drawn from this phraseology, to the effect that the notes were accepted in payment of. the debt, is dispelled by the further pleading that plaintiffs cashed the notes .with the correspondent of defendant, thus reimbursing themselves and having the alleged indebtedness paid in full. ’ ’ Having in this way negatived the notion first sought to be conveyed, that the notes were received in payment, defendant endeavors to intimate that the debts were really paid in this cash which the plaintiffs received from the notes. But defendant is careful to avoid pleading that this cash was received from the defendant, alleging only that it was received from the correspondent ’ ’ of defendant, which, of course, is quite meaningless so far as any legal effect is concerned.

Defendant’s counsel interpreted this pleading to mean that the notes were discounted by the plaintiffs with a bank which happened to he the correspondent of the defendant.

If, therefore, this answer and counterclaim be taken at its face value, it is meaningless, and judgment should be granted thereon in favor of plaintiffs. If, disregarding the form, we deal with the substance and treat the pleading as meaning what defendant’s counsel claims it means, it sets up no defense of payment. Prom either point of view it is insufficient.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to plead over within six days upon payment of costs in this court and in the court below.

Seabury, J., concurs; Guy, J., dissents.

Order reversed, with ten dollars costs, and motion granted, with ten dollars costs.  