49 N.Y.S. 163 | N.Y. Sup. Ct. | 1898
A note or other contract for the payment of money is not usurious and void for providing for the payment of more than the statutory rate of interest after maturity (Pomeroy v. Ainsworth, 22 Barb. 124; Sumner v. People, 29 N. Y. 337; Bank of Chenango v. Curtiss, 19 Johns. 335).
That there is incorporated in the.defence a denial of the allegation of the complaint that the note was given for value, does not prevent the demurrer from being sustained. This denial had already been pleaded in the appropriate place for denials, and should not have been repeated. And a denial is not a “ defence ”.. It can have no place in a defence. A denial in a defence is mere ' surplusage, and is not to be regarded. Not even a novice in pleading should plead a “ denial ” as a “ defence ”. In an answer .“ denials ” are pleaded, if there be any, and then come “ defences.” The latter always were, and they still are, distinct from the former in both name and substance. A defence may only contain new matter, viz., matter outside of the issue raised by a general or special denial (Code Civ. Pro., sec. 500). A defendant may set forth as many defences as he has,'“ whether they áre such as were formerly denominated legal or equitable,” and each must be separately stated and numbered (sec. 507).' This illustrates the confusion of calling a denial a defence, for who in referring to denials would distinguish them in respect of whether they are “legal or equitable”? Nothing should be pleaded “as a de-. fence” the burden of proving which is not upon the defendant. .
Demurrer sustained.