34 How. Pr. 281 | N.Y. Sup. Ct. | 1868
It is claimed that the answer is frivolous, because it is that the defendant “ says that he denies,” &c., instead of being simply that the defendant “ denies,” &c. It is conceded it would be good if the words “says that he” had been left out of it. Arthur agt. Brooks (14 Barb. 533) and Blake agt. Eldred (18 How. Pr. R. 240) are relied upon to show that the answer is frivolous: These authorities support that position; but, with all due deference to them, I am unable to satisfy myself that the answer should be adjudged frivolous.
It is provided by section 149 of the Code, that the answer may contain “a general or specific denial of each material allegation of the complaint controverted by the defendant.”
It also provides that “in the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties.” (Code, § 159.)
If a witness should say, “ I swear my name to the note, shown me,'is a forgery,” it would require “ optics keen” to see any material difference between it and the following, viz: “My name to the note, shown me, is a forgery.”
If a person should declare, “I say I was at Washington on the first day of January, 1868,” very few persons would think the assertion any stronger, if he should omit the words “ I say ” and declare, “ I was at Washington on the first day of January, 1868.”
I do not doubt that an answer is good that is as follows: “ The defendant, answering the complaint in this action, says, he denies each and every allegation contained in the complaint.
My conclusion is, that the answer in this action should not be struck out as frivolous, and that the plaintiff’s motion for judgment, for the alleged frivolousness of the answer, should be denied.
