Hammond v. Earle

58 How. Pr. 426 | N.Y. Sup. Ct. | 1880

Lawrence, J.

The demurrer to the fourth defense must be sustained. No reference is made, in the subdivision of the answer in which that defense is alleged, to the matters averred in the other parts of the answer. In Baldwin agt. The United States Telegraph Company (54 Barb., 517), Potter, J., in delivering the opinion of the court, says: “ By the well-settled rules of pleading each answer must of itself be a complete answer to the whole complaint, as perfectly so as if it stood alone. Unless in terms it adopts or refers to the matter contained in some other answer, it must be tested as a pleading, alone by the matter itself contains ” (See, also, Swift agt. Kingsley, 24 Barb., 541). The defense to which this demurrer has been interposed does not refer to any other defense in the answer, nor to any of the allegations of fact contained in other defenses. If it is not complete in and of itself, it is, therefore, insufficient in law, and cannot be sustained by reference to the other defenses contained in the answer. Tested by this rule the fourth defense is clearly bad, because no facts are averred, simply the conclusion of law that the contract alleged in the complaint is inoperative and void for want of a sufficient and adequate consideration therefor (See Burrall agt. Bowen, 21 Howard, p. 378, per Leonard, J. White agt. Drake, 3 Abbott, N. C., p. 134 and cases cited per Barrett, J.). The demurrer to the sixth defense, under the rule referred to, must also be-sustained. As to this defense the case of White agt. Drake (3 Abbotts New Cases, p. 133) is directly in point. But I am of the opinion that the demurrer to the seventh defense should be overruled. If the allegations in respect to that defense were not sufficiently definite and certain to enable the plaintiff to understand them or to raise a clear and precise issue, the remedy by the plaintiff, is by motion to make more definite and certain. In Springer agt. Dwyer (50 N. Y., 19) the court of appeals held that where the answer alleges facts sufficient to constitute a defense of recoupment, it is not necessary for the defendant to state what he will rely upon, and if he so states, he will not be precluded from insisting upon any defense which the facts alleged will justify. The facts alleged in the seventh defense are sufficient to entitle the defendant to a recoupment of his damages, and even if they are obscurely or vaguely set forth, the answer is not for that reason demurrable. As the defendant has partially succeeded on the demurrers, he should be allowed to answer without payment of costs. Ordered accordingly.