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or information as to the character of the Superior Court, and "denies each and every allegation" of the complaint as to the material facts set forth above.

At the trial the plaintiff offered in evidence a certified copy of the judgment roll, entered in the Superior Court of Cook county, Ill., January 5, 1883. This was objected to on the grounds that it was not against the defendant Charles A. Coutant, and "that it does not appear that the defendant, whoever he was, C. A. Coutant, was personally served with the summons in the action." The objections were overruled and the defendant excepted. The plaintiff, over the objections of the defendant, was allowed to give evidence tending to establish that the defendant. Charles A. Coutant was the C. A. Coutant who was the defendant in the action brought in the Superior Court of Cook county. At the close of plaintiff's evidence the defendant moved, through his counsel, to dismiss the complaint on the grounds "that the judgment in Cook county is against C. A. Coutant and not against Charles A. Coutant," and that it appeared upon the face of the exemplified judgment in evidence that the defendant, if it was Charles A. Coutant, was never personally served with the summons and complaint, and that it appeared on that paper that the summons or writ was served on one C. A. Coutant by reading it to him. The court ruled that the defendant had not pleaded lack of jurisdiction on the part of the Illinois court, and denied the right of the defendant to make proof that he was not personally served with the summons in the original action, or to amend his pleadings, and the appeal comes to this court upon defendant's exceptions to these rulings.

There is no serious dispute of the right of the plaintiff to judgment in this action, the principal point of the defendant being that the judgment in the Illinois court is against C. A. Coutant, while the defendant in this action is Charles A. Coutant, and it is appar ently upon this technical difference in the name of the party defendant that the defendant relies both in his pleadings and upon this appeal. The effect of this difference in names is materially lessened, if it may be said to have had any force, by the fact that in the affidavit verifying the defendant's answer, after reciting that "Charles A. Coutant, being duly sworn, says," etc., is signed "C. A. Coutant," APP. DIV.-VOL. XXXVIII.

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[Vol. 38.

so that, by the record as made by the defendant, there would seem to be no question as to the identity of the defendant in both actions. The authorities relied upon by the defendant in support of his proposition that it was necessary to show that the initials "C. A." were used as an abbreviation for "Charles A." fall short of the point, and have no bearing upon the facts of this case, where the name of the party defendant is fully set forth. There is no effort to contradict the record or to add anything to it, and it was proper to identify the defendant as the C. A. Coutant against whom the judgment was found in the Illinois court. The rule laid down in Stephen's Digest of the Law of Evidence (Chap. 12, art. 90) relates, not to the names or the identity of parties, but to the subject-matter of written instruments, and cannot be invoked in aid of the defendant's contention.

While the law in this State is well settled that the defendant may question the jurisdiction of the court in which the judgment of a sister State is rendered, it is equally well established that he must plead this want of jurisdiction, and the question cannot be raised by a general denial of the allegations of the complaint. The general denial goes only to the extent of denying the existence of the facts necessary to the cause of action, not to the jurisdiction of the court in which the judgment on which this action is based was found, and is in effect to plead nul tiel record. In the case of Starbuck v. Murray (5 Wend. 148, 156), the court, in discussing the case of Shumway v. Stillman (4 Cow. 292), say that in that case it was explicitly decided "that it was competent for the defendant to shew, by a special plea, that the court in which the judgment was rendered had no jurisdiction either of the subject-matter or of the person." The plaintiff, in setting forth his cause of action, states that the summons in the Illinois case 66 was thereafter duly and regularly personally served on the said defendants and each of them," and this fact, while not necessary, perhaps, in the pleadings, is sustained by the recitals of the judgment roll, which says that "it appearing to the court that due personal service of process of summons issued in said cause has been had on the defendants for at least ten days before the first day of this term," etc.; and the question of what particular method of service was employed was one wholly within the control of the State of Illinois, and the recital in the

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judgment must be conclusive upon the defendant, unless it is shown that the court did not have jurisdiction of the person of the defendant, and this question cannot, as we have already pointed out, be raised by a general denial. As was said in the case of Shumway v. Stillman (supra): "Every presumption is in favor of the jurisdiction of the court. The record is prima facie evidence of it, and will be held conclusive until clearly and explicitly disproved." Freeman on Judgments (§ 570) lays down the proposition that "each State has the authority to provide the means by which its own citizens may be brought before its courts; that the courts of other States have no authority to disregard the means thus provided, and, finally, that every judgment or decree obtained in a State against some of its citizens, by virtue of a lawful, though constructive, service of process, should be as obligatory upon such citizen in every other State as it is in the State whence it is taken." The defendant was admittedly a resident of the State of Illinois at the time judg ment was entered against him, and the recital in that judgment of the facts necessary to give jurisdiction cannot be attacked upon a plea denying the allegations of the plaintiff in conformity with the recitals of the judgment. Mr. Justice STORY, in the case of Mills v. Duryee (7 Cranch, 481), says: "The pleadings in an action are governed by the dignity of the instrument on which it is founded. If it be a record, conclusive between the parties, it cannot be denied but by the plea of nul tiel record." It is now generally conceded that, under the provisions of the Federal Constitution and the acts of Congress, the judgments of State courts are to have "such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken."" (Freem. Judg. § 561.) But this rule does not prevent the defendant from raising the question of the jurisdiction of the court in a manner consistent with the dignity of the record, for it has been held that, if the court had no jurisdiction, then the record is not a record, and that it cannot have any binding force upon the courts of this State. "I cannot entertain a doubt," says Justice SUTHERLAND in the case of Shumway v. Stillman (supra), "upon principle, that, in an action upon a State judgment, it is competent for the defendant to show, by a special plea, that the court in which the judgment was rendered

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had no jurisdiction either of the subject-matter or of the person." (See Borden v. Fitch, 15 Johns. 121, 141.) When the Shumway case came before the court again in 1831, on appeal (6 Wend. 447), the court held that, in an action on a judgment of a court of a sister State to a plea that the defendant was not personally served with process, and had no notice of the suit, the party plaintiff may reply that the defendant appeared in the suit by attorney, and the record of the judgment stating the fact that the defendant did appear by attorney will be evidence of the fact until contradicted. In the case of Henderson v. Staniford (105 Mass. 504) the court say: "A judg ment, obtained without legal notice or service of process upon the defendant, there being no other objection to the jurisdiction of the court rendering it, is voidable only, not void. * The defendant can avoid it only by plea; except where he is compelled to resort to a writ of error. And upon such plea, the burden is upon him to show the invalidity of the judgment." (See Bissell v. Wheelock, 11 Cush. 277.)

* *

"It is an elementary principle recognized in all the cases," say the court in the case of Ferguson v. Crawford (70 N. Y. 253, 256), "that, to give binding effect to a judgment of any court, whether of general or limited jurisdiction, it is essential that the court should have jurisdiction of the person as well as the subject-matter, and that the want of jurisdiction over either may always be set up against a judgment when sought to be enforced, or any benefit is claimed under it." But nowhere do we find a suggestion that this question may be raised by a simple denial of the allegations of the complaint; it is an affirmative defense, in which all of the presumptions are in favor of the judgment and its recitals. The defendant must not only plead lack of jurisdiction, but he must sustain the burden of proving the defense asserted. The rule is stated in the case of Knapp v. Roche (94 N. Y. 329, 333): "It is always competent to prove, under a general denial, any facts tending to controvert the material affirmative allegations of a complaint." But this is of no avail to the defendant, for the material allegation of the complaint is that a judgment was found against the defendant in the courts of Illinois, and all of the other allegations are incident to that fact. The general denial is a denial only of the fact of the existence of the judgment, and the plaintiff, in producing a duly attested copy

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of the judgment, has met all of the requirements of the case, and is entitled to judgment under the pleadings.

The court, in denying the motion to permit the defendant to amend his pleadings, was acting within its discretion, and, under the circumstances of this case, where the defendant was apparently standing upon a mere quibble, it would have been an abuse of the discretion to have done otherwise than to refuse to grant the motion. The judgment appealed from should be affirmed, with costs. All concurred.

Judgment affirmed, with costs.

HENRY A. SIEBRECHT and HENRY A. SIEBRECHT, JR., Respondents, v. SIEGEL-COOPER COMPANY, Appellant.

Counterclaim-action to recover for goods sold — allegation in the answer that the plaintiff's conspired to exact excessive prices from the defendant — election to sue on contract.

In an action brought to recover for certain shrubs and flowers sold to the defendant by the plaintiffs' assignors, a firm of florists, an answer which alleges that the plaintiffs, a father and son, of whom one was a member of such firm of florists and the other had charge of a department in the defendant's store, entered into a conspiracy by which supplies were purchased of the firm at prices greatly in excess of their market value, states a counterclaim "connected with the subject of the action" within the meaning of section 501 of the Code of Civil Procedure and is not demurrable.

The fact that the defendant, while alleging the conspiracy in its answer, confines its demand for judgment to the aggregate amount of the overpayments shown to have been wrongfully taken, is, in the absence of affirmative acts pointing in a contrary direction, conclusive as to its election to waive the tort and to proceed upon the implied contract of the plaintiffs to repay the moneys which they or their assignors had received, without giving a valuable consideration therefor.

APPEAL by the defendant, Siegel-Cooper Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 18th day of April, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiffs' demurrer to the counterclaim set forth in the defendant's amended answer.