71 N.Y.S. 144 | N.Y. Sup. Ct. | 1901
It would be difficult to draw a more illiterate
and unscientific answer; but the plaintiff has mistaken the remedy against most of it. The four so-called “ defences ” cannot be struck out for insufficiency. The remedy is demurrer. The introduction to each one, however, in these words, viz., “ and repeating the allegations and denials hereinbefore set forth as completely as if herein fully set forth ”, must be struck out as irrelevant and redundant. A “ defence ” must be complete in and of itself, and can consist only of “ new matter ” which constitutes a defence to the action, i. e., new matter which, taking the complaint to be true in all of its allegations, nevertheless defeats the action. “ Rew matter ” is matter outside of the issues raised or which could be raised by a denial. There can be no denial of the complaint or of any part of it in a “ defence ”. A “ denial ” and a “defence” are distinct and separate parts of an answer (Code Civ. Pro., § 500; Hinchcliffe v. Staten I. R. Co., 34 Misc. Rep. 49, and cases there cited; Durst v. Brooklyn H. R. Co., 33 Misc. Rep. 124).
The first denial in this answer is that “the defendants denies any knowledge or information sufficient to form a belief as to
The part of the motion that the defendants make the answer more definite and certain by. stating whether each defence is a partial or complete defence is denied. If a defence be not pleaded as a “ partial ” defence it is taken to be pleaded as a complete defence (Code Civ. Pro., §§ 507-8).
Let an order be entered in accordance with the foregoing, with $10 costs.