193 A.D. 161 | N.Y. App. Div. | 1920
The questions directly involved in this case were quite simple and were correctly decided by the Appellate Term (111 Mise. Rep. 150). We would be content to affirm the determination with a minor modification without opinion were it not for the fact that the learned justices of that court have sent the case here for reyiew and have written a long opinion with the purpose of formulating certain rules with reference to Code pleadings, and evidently desire an expression of opinion from this court upon the subject of the opinion.
The action was brought on an assigned claim for $1,416.80, the agreed price and reasonable value of certain work, labor and services performed and materials furnished at the special instance and request of the defendant by the plaintiff’s assignor, the S. S. Corporation.
The answer in the 1st paragraph “ denies each and every allegation contained in paragraphs marked Third, Fourth, Fifth and Sixth of plaintiff’s complaint, except admits that certain services were rendered and materials furnished by the S. S. Corporation for this defendant.” In other words, the incorporation of the defendant and the steamship corporation are admitted and that certain services were rendered and materials furnished by the S. S. Corporation for the defendant, but each and every other allegation of the complaint is denied. The answer then sets up five separate defenses, in each of which the 1st paragraph of the answer is repeated verbatim. The plaintiff moved: 1. To strike out the paragraph which incorporated the denials in each separate defense. 2. To make definite and certain the allegations in the first and second defenses wherein it states “ that such payment [from defendant to plaintiff’s assignor] was made prior to notice to it [defendant] of any valid assignment, and to any valid assignment to plaintiff by the S. S. Corporation,” in that it is not apparent whether the defendant means to plead that it received a notice of a valid assignment after having paid the money, or whether it never received any notice of an assignment, or whether it received a notice of assignment but wishes to allege that the assignment itself was defective. 3. To strike out as irrelevant, redundant and scandalous paragraphs 11, 12 and 13 contained in the fourth defense. 4. To
This motion was denied in the City Court, except that the defendant should make definite and certain its second defense by stating whether or not it received any notice of assignment. The Appellate Term modified the order by striking out all the denials in the separate defenses and also the allegations in the 11th, 12th and 13th paragraphs of the fourth defense, except that the assignment to the plaintiff was without consideration.
The modification of the order by striking out the scandalous matter was proper. The appellant argues that the effect of this is to strike out the entire defense. The facts alleged, except possibly that the assignment was without consideration, do not constitute a defense and have been inserted in the answer solely to insult the plaintiff and not to protect the defendant. They are immaterial and could not properly be received in evidence. Where this is the case such allegations may be stricken out, although it has been stated generally, “ that an entire defense, even though it be insufficient in law, cannot be stricken out as irrelevant, redundant or scandalous.” (Gibson v. McDonald, 139 App. Div. 51, 52.) That case and those cited in the opinion were cases where the motion was made to strike out as irrelevant and redundant, and not as scandalous. It is true that the sufficiency of a defense must be tested by demurrer and not by motion to strike out; nevertheless, “ where scandalous matter has been inserted in an answer solely to insult the plaintiff and not to protect the defendant, the plaintiff is not required to admit the scandalous allegations by demurrer, but such answer, although alleged as a separate defense, may be stricken out as scandalous. The necessity of the case makes this exception to the rule.” (Hanson Co. v. Collier, 119 App. Div. 794, 795; Persch v. Weideman, 106 id. 553, 554; Armstrong v. Phillips, 60 Hun, 243, 244.) The court properly refused to strike out the 16th paragraph as irrelevant and redundant. It is neither. It is relevant, because it has reference to the transaction which is the subject of the action. It is an attempt to allege that the assignment is void because made in contravention of section 66 of the Stock Corporation Law. It may be that the facts alleged are not sufficient to constitute a defense to this action,
The rule is well settled that a general denial in an affirmative defense is always improper and that a specific denial cannot
It is more essential that a rule of pleading or practice should be settled and consistently followed than that it should be scientifically correct. The important thing to the bench and bar is to know what the rule is, rather than what it ought to be. Therefore, if we admitted the criticism of the learned justices of the Appellate Term, or those contained in a publication to which they refer, we would not at this time deem it wise to change the rule. It may be that a change will be made when the effort is made to simplify the practice, at which time it would lead to less confusion. Is the charge that this rule is contrary to all systems of pleading prior to the Code, and hence unscientific, well founded? The rule had its foundation in the opinion of the Court of Appeals: “ The allegations of the complaint not denied in the affirmative defense are for the purposes of the question now presented to be deemed admitted. The affirmative defense is to be treated as a separate plea, and the defendant is not entitled to have the benefit of denials made in another part of the answer, unless repeated or incorporated by reference and made a part of the affirmative defense.” (Douglass v. Phenix Ins. Co., 138 N. Y. 209, 215.) It may be that it would have been better and more consonant with the Code system
For the reason above given, the order should be further modified by requiring the defendant to make definite and certain the first defense by stating whether it received any notice of any assignment, and as modified the determination of the Appellate Term is affirmed, with ten dollars costs and disbursements to the respondent.
Clarke, P. J., Laughlin, Dowling and Greenbaum, JJ., concur.
Order modified as stated in opinion, and as so modified affirmed, with ten dollars costs and disbursements to respondent.