Johnston Harvester Company agt. Meinhardt.

political economy, be recognized and sustained. The com-, bination of workingmen undoubtedly permits of more prolonged contests with capital than formerly; but capital, by com-' bination also, threatened to be stronger than before. It is by combination in trades unions that laborers possess and exercise some control over the wages and the hours of labor; and we' have the authority of T. E. Cliff-Leslie, professor of jurisprudence and political economy, Queen's University, for saying that "It would be nearer the truth to say that trades unionism tends to prevent disputes with the employer, rather than to make the common allegation that it promotes them."

The fact was shown in evidence before the British royal commission on trades unions, which reported in 1869, that there had been fewer disputes with employers, and greater permanence in the rate of wages, in the trades with the strongest and richest and most extended unions.

Undoubtedly if capitalists and laborers could truly see wherein their welfare respectively lies, it would be found that there was an inter-dependence between them, and that what was for the permanent and substantial good of either would, in the long run, be for the benefit of both. But, in the language of Mr. Goldwin Smith: "The laborer may be forgiven if he fails fully to understand that, though he receives his wages from the hand of the master, his real employer is the community, which will refuse, and cannot possibly be compelled, to give a higher price for the product of his labor than it can afford; that he, as a member of the community and an employer in his turn, offers for every product of labor which he purchases the market price and no more; and that if he persists in acting on the opposite principle where his own work is concerned, instead of enforcing an exceptional privilege, he will ruin his own trade" (30 Contp. Review, 531).

Yet, that the controversy will go on admits of no doubt. The direction of capital will be turned by the resistance of labor, and labor be turned by the exactions of capital, for VOL. LX

23

Fallon agt. Durant.

both, under a well recognized law of political economy, will run on the lines of the least resistance. It is the duty of courts and of peace officers to see to it that such controversy shall not result in breaches of the peace, or in such acts as may tend to breaches of the peace, and to hold alike the employer and the employed to the payment of damages for any violation of contract, and to responsibility for any acts which immediately and in a legal sense affect the rights of either. Beyond that I am not disposed to go, because that is as far as the case presents judicial questions. Further than this, let the law of supply and demand govern the parties. The field open to either is wide.

The motion for an injunction during the pendency of the action is denied, with ten dollars costs.

SUPREME COURT.

JOHN FALLON agt. CHARLES W. DURANT and others.

Reply-When denial upon information and belief is insufficient — Answer — Complaint― Code of Civil Procedure, sections 493, 514.

A denial by plaintiff in his reply, upon information and belief, of allegations in defendant's answer, is insufficient where the facts set up in the answer are clearly within the plaintiff's knowledge as appears by the averments in his complaint.

Special Term, December, 1880.

DEMURRER to reply.

Norwood & Coggeshall, for demurrer.

Walsh & Eckerson, opposed.

Fallon agt. Durant.

VAN VORST, J.-The plaintiff's reply is clearly insufficient. The defense in the answer, to which the reply under the order of the court was interposed, sets up facts clearly within the plaintiff's knowledge. He knew when the injury was sustained by himself, for he has clearly stated it in his complaint. By his reply he denies, "upon information and belief, each and every allegation" contained in the answer setting up the new matter. The Code does not authorize a denial in that form.

Section 514, which applies to this pleading, provides a form of denial. It must contain "a general or specific denial of each material allegation controverted," or "of any knowledge or information thereof sufficient to form a belief" (Code Civil Procedure, sec. 493).

The plaintiff in his reply fails wholly to meet the requirements of the Code in his denial.

I do not mean to decide that a party cannot deny allegations contained in a pleading upon information and belief. There are cases when such method of denial would be highly proper. But when, as is manifest in this case from the allegations contained in his complaint, which forms a part of the record before me, he attempts to deny upon information and belief facts within his knowledge, such denial must in law be regarded as insufficient.

The question could, without doubt, have been raised by a motion to strike out the pleading, but the objection may also be taken by demurrer.

There must be judgment for the defendant on the demurrer, with liberty to the plaintiff to amend on payment of costs.

Tinkey agt. Langdon.

SUPREME COURT.

J. TINKEY agt. C. A. LANGDON.

Practice-Supplementary proceedings — Jurisdiction and power of county judge as to appointment of receiver in — Appeal — Irregularities which are waived by-Contempt - Basis for imposition of fine.

On a motion to set aside an order made by a county judge appointing a receiver in supplementary proceedings where it appeared that an appeal was taken to the general term of this court, which appeal is still pending:

Held, that such appeal must be deemed to be a waiver of such irregularities if any there be, as are not brought up by it for review, and as to all such alleged irregularities and improper acts of the county judge as are covered by the appeal, they will be considered when the appeal shall be heard at general term. All action proper to be taken at special term, either to vacate it or correct it, should be taken before the bringing of the appeal from it to the general term.

Where an order was made by a county judge declaring a judgmentdebtor in contempt, the order being made on the return of an order to show cause, the same having been duly served on the debtor, but without his presence and without the appearance of anyone in his behalf: Held, that it being taken against the debtor by default it was competent for him to move to set it aside for irregularity. The moving party was bound to make a case for the granting of the order on the merits, at least, the same as if the debtor had appeared and objected to the proceeding; and if he failed to make his case the debtor might and should move to set the order aside rather than to appeal.

Can an appeal be taken from an order obtained by default for nonappearance? Quære.

Although a county judge may, under section 298 of the Code of Procedure, appoint a receiver in supplementary proceedings, it seems doubtful whether he is authorized by law to order a conveyance by the debtor of his property to a receiver or to direct its delivery and possession to that officer,

To punish as for a contempt for refusing to deliver property to a receiver, an order requiring such delivery is a necessary prerequisite. A simple demand of possession is not sufficient.

Where the order appointing the receiver directed the debtor to assign and convey his lands and real estate, but contained no directions to the debtor to surrender its possession:

Tinkey agt. Langdon.

Held, that he could not be held in contempt for omitting or refusing to do what had not been commanded or required of him.

In contempt proceedings a fine cannot be properly imposed arbitrarily and capriciously; but it must have a basis upon proof of damages or injury.

Saratoga Special Term, August, 1880.

one

BOCKES, J. Two motions were made in this cause to set aside an order made by the county judge of Washington county appointing a receiver of the property of Langdon in proceedings supplementary to execution based on a judgment rendered in the supreme court, the other to set aside an order to show cause why Langdon should not be punished for contempt, and, also, the order made on its return with all proceedings thereon, which latter order declared said Langdon in contempt for refusing to convey his real property to the receiver, and for refusing to deliver to the latter possession of both his real and personal property, and by which latter order a fine for the alleged contempt was imposed upon him of $450, with thirty dollars costs of the proceedings. These motions were heard together substantially as one

motion.

As to the order appointing a receiver it appears that an appeal was taken thereon to the general term of this court, which appeal is still pending.

This appeal must be deemed to be a waiver of such irregularities, if any there be, as are not brought up by it for review; and as to all such alleged irregularities and improper acts of the county judge as are covered by the appeal, they will be considered when the appeal shall be heard at general term. All action proper to be taken at special term, either to vacate it or correct it, should be taken before the bringing of the appeal from it to the general term. The motion to set aside the order appointing a receiver must be denied.

The important question here to be decided, as I think, relates to the granting of this order by the county judge