85 N.Y.S. 146 | N.Y. Sup. Ct. | 1903
La the first nine paragraphs of the answer the defendant specifically admits or denies the several allegations of the complaint; then follow four separate defenses and a counterclaim. Each of these defenses and the counterclaim begins with a recital, that the defendant “ reiterates all the admissions and denials contained in paragraphs I to IX of this answer inclusive and ” alleges •* * * . Motion is made to strike out the words in quotation. It is well settled# as contended by the defendant, that an affirmative defense or a counterclaim must be treated as a separate plea, and that, upon demurrer thereto, defendant is not entitled to the benefit of denials made elsewhere in the answer unless incorporated in the separate plea. Douglass v. Phenix Ins. Co., 138 N. Y. 208; Boyd v. McDonald, 12 N. Y. Supp. 356; Roldan v. Power, 14 Misc. Rep. 480. Moreover, “ It is not essential that a separate count- in an answer setting forth a counterclaim should contain in itself all the allegations requisite to a perfect counterclaim; it may refer to other parts of the answer, or to the complaint, and the matters thus referred to are to be considered a part of the count as if written at length therein.” Cragin v. Lovell, 88 N. Y. 258. But the defendant will not be permitted to incorporate by reference and plead irrelevant and redundant matter and the same may be stricken out upon the motion of a person aggrieved thereby. Code Civ. Pro., § 545. In this case the reiterated recitals are irrelevant and redundant. The denials can be proven under the first nine paragraphs of the complaint and their repetition does not strengthen the plaintiff’s pleading. They are not a necessary or proper part of the separate defenses. The very theory of an affirmative defense is that without denial of the allegations of the complaint the defendant can defeat the plaintiff by new matter pleaded. Besides, the plaintiff is aggrieved by the presence of these denials. A defense which contains a general denial is not demurrable, even though the other matter pleaded does not constitute a defense. Uggla v. Brokaw, 77 App. Div. 310; Flechter v. Jones, 64 Hun, 274. And, therefore, as stated in State of South Dakota v. McChesney, 87 Hun, 293: “ By permitting a general or specific denial
Ordered accordingly.