Garrett v. Wood

27 A.D. 312 | N.Y. App. Div. | 1898

Parker, P. J.:

If the statement in the second defense, that “the defendant reaffirms all the allegations and denials contained in the first, second and third paragraphs of this answer,” requires us to read into that second defense all such allegations and denials as a part thereof, then such second defense, although abominable pleading, is not demurrable. In that event it contains a denial of all the averments contained in the complaint (except that defendant is an executor as therein charged), and, therefore, it is not “ insufficient in law ” as a defense.

Several defenses may be separately stated in an answer, but each defense must be complete in itself, and must contain all that is necessary to answer the cause of action, or that part of it which it purports to answer. It is allowable, however, for the purpose of conciseness, to aver in one defense, or by way of introduction to all,, facts alike applicable to several defenses, and to refer to them in the other defenses by language which will indicate a clear intent to incorporate them as allegations therein. (Xenia Branch Bank v. Lee, 7 Abb. Pr. 372, 386; Ritchie v. Garrison, 10 id. 246; Simmons v. Fairchild, 42 Barb. 404; Baldwin v. U. S. Telegraph Co., 54 id. 505; Green v. Parsons, 14 N. Y. St. Repr. 97, 98.)

The answer under, consideration does not conform to that rule. There is a statement to the effect that the defendant reaffirms the whole of his first defense. Evidently this is not a reference to certain facts, in that first defense, which are pertinent,'and necessary to' be read with, and to complete the new matter contained in the second and third defenses. • All of the material allegations of the first defense consist of denials, and such denials are not facts, which, read in connection with the new matter, constitute a separate and further defense. They add nothing whatever to the new matter, and it cannot, therefore, be supposed that it was intended to incorporate them into the second and third defenses in aid of that new matter.

In the second and third defenses, the evident design is to set up a “ further ” defense, and not to merely repeat or reaffirm the first one. The pleader so distinctly states. Hence, we have no reason to conclude that he intended to incorporate such denials into and make them a part of such “ further defenses.” He does not state that such is his intention, and his statement that he reaffirms his first defense is nothing more than a statement that, in addition to his first defense, he pleads the following facts as a further defense.

The second and further defense is the new matter therein alleged; the first defense becomes no part of it.

If such a system of pleading were tolerated, the defendant might state that he reaffirmed the first defense as' a part of his second, and the first and second as a part of his third, and the first, second and third as a part of his fourth, and so on; and thus a rule adopted only for the purpose of conciseness in pleading would be used to create infinite confusion. I conclude that one defense may not, by averment merely, be incorporated bodily into another; that only facts which are necessary and pertinent to complete the allegations of new matter therein may be so incorporated, and only those will be deemed included in a subsequent defense which are clearly averred in a prior defense, and which, by apt and appropriate language, have been referred to in the subsequent defense as a part thereof.

These views lead to the conclusion that the second and the third defenses in the answer before us consisted of nothing more than the new matter therein alleged; and inasmuch as such new matter constituted in itself no defense to the cause of action set forth in the complaint, the demurrer thereto should have been sustained. •

The order and judgment appealed from are reversed, with costs, and judgment is ordered for the plaintiff upon the demurrer, with costs, with leave to the defendant to amend his second and third defenses, if he so desires, within twenty days after notice of such judgment and upon payment of such costs.

Landon and Hebbick, JJ., concurred; Meewin and Putnam, JJ., dissented.

Order and judgment appealed from reversed, with costs, and judgment ordered for the plaintiff upon the demurrer, with costs, with leave to the defendant to amend his second and third defenses, if he so desires, within twenty days after notice of such judgment and upon payment of such costs.