8 How. Pr. 441 | N.Y. Sup. Ct. | 1853
By the system of pleading superseded by the Code, a plea must have answered the whole count or it was bad; in other words, a special plea must have contained facts which constituted a bar to the action. Boyd agt. Weeks, (5 Hill, 393;) Root agt. Woodruff) (6 Hill, 418.)
The plaintiff, in the present case, insists that this rule of pleading still exists; and that the answer which contains a statement of new matter must contain a statement of facts which will bar the plaintiff’s action.
The question arises mainly under the second subdivision of section 149; the answer must contain, “ 2d, a statement of any new matter constituting a defence,” &c. What is here meant by the word defence 1 Blaekstone (v. 3. 296,) says, "defence in its legal sense, signifies not a justification, protection or guard, which is now its popular signification, but merely an opposing or denial (from the French verb defendre,) of the truth or validity of the complaint.” (See also 1 Chit. Plead., Appearance and Defence.) Gould on Pleadings, (ch. 2, § 6,) says : “ The term defence signifies, in the language of pleading, not a justification, but resistance or denial, as is very manifest from the established form in which defence is made,” He adds, in section 15 “ that in a less technical sense the word defence is used as. well in legal as in popular language, to signify, not a clause or form in pleading, but the subject of the plea; thus, if in an action on contract, the defendant pleads infancy, or to an action of trespass or license, infancy in the one case, and license in the other is called the defence.” It is quite clear that the word defence, in the Code, is not used in its legal technical sense. It has no application to that part of the answer which contains denial only, of the facts stated in the complaint; but it is used in reference to the statement of new matter, and it must be such new matter as constitutes a defence ; and the question- is, must it be matter which constitutes a complete bar to the action 1 In common parlance the word defence is used as
No difficulty arises in practice from these decisions. If the defendant denies the allegations of the complaint, he may, as formerly, give evidence of the facts proper to mitigate damages, and if he cannot, with truth, deny the allegations in the complaint, he can appear to the action, and will be entitled to notice of the assessment of damages before the jury ordered or the referee, and he can then mitigate damages in the same manner as formerly, upon a writ of enquiry. As to which see Gra. Pr. 794, et seq. These principles, however, have no application to the present question. It is not claimed that the defendant, if he failed to answer, would be permitted to show payment of a part of the plaintiff’s demand; nor is it claimed that he would be allowed to do so, if he had simply denied the allegations of the complaint.
Under the system superseded, it was a rule, that when a defendant had a partial defence, not available by special plea in bar, he might give evidence of it under the general issue. (2 Hill, 194; 21 W. 279.) We have now no general issue, and I do not understand that payment or set off can now be„ shown, when the answer is simply a denial of the complaint. A partial payment or set off, is, in common parlance, a defence pro tanto, and how is the defendant, by his pleading, to avail himself of such defence 1 In the present case the plaintiff argues, that the defendant should have pleaded payment as formerly, that is full payment, thus stating facts which would bar
It was also an important part of the system of the commissioners, that the pleadings should be verified, (1st Report, p. 145.) Could it have been intended, in a case where the defendant had actually owed the plaintiff a thousand dollars, and had only paid him on account of such debt, one hundred dollars, that he should when sued, the whole $1000 being claimed, be compelled to answer and state, generally, as new matter, that he had paid the debt or demand, and swear to the truth of his answer, when he knew that he still owed the plaintiff $900 of the original demand 1 I do not think such was the intention.
It may be .worthy of remark, that in the original Code, nothing was said, in that part of it, relating to actions in courts of record, touching set off or recoupment, and yet it can hardly be supposed that it was intended to deprive a defendant of his set off or recoupment of damages; and I suppose that a defend
In Graham agt. Stone, (6 How. Pr. R. 15,) the action was slander. The defendant denied the allegations in the complaint, and without justifying, stated matters in mitigation of damages. Justice Johnson held that he had no right to state these matters, and that the answer was insufficient. He added that the new matter constituting a defence must be taken to mean a defence in bar of the action, as the general term was before used and understood in pleadings. This remark was not necessary to the decision of the case. In Smith agt. Waite, (7 How. Pr. R. 227,) Justice Harris held that in an action for breach of promise of marriage, the defendant could not state facts simply in mitigation of damages. The learned justice remarks, that the' Code authorizes the defendant to plead any new matter constituting a defence. It is but an enactment of the common law rule upon the subject, &c., and he refers to Graham agt. Stone.
The defendant, in Smith agt. Waite, had denied the allegations in the complaint, and, in a statement of new matter constituting a defence, he inserted the mitigating matter and it was striken out. Though I concur in the correctness of these decisions, they are not, as I think, in point. In those cases the evidence in mitigation of damages could have been given without pleading the facts. In the present case I know of no way by which the defendant can avail himself of the defence of partial payment, without pleading it. Clearly he could not do so under a denial answer simply, and I am not prepared to hold, that he is bound to plead a full payment, when he may know that he still owes a large balance. The defendant may offer to allow judgment to be taken against him for a certain sum, (Code, § 385,) but suppose the plaintiff declines the offer, or suppose the defendant wishes to contest a portion of the remainder of the demand ?
The great rule as to the answer, passing over that touching denial, is that it must contain a statement of new matter, constituting a defence. It is not declared that the new matter shall constitute a bar, unless the word defence means a bar. In an answer in Chancery, in a proper case, the defendant could set forth partial payments of the amount claimed in the bill. This would not, however bar the suit, but, if established, would constitute a defence pro tanto. Suppose, in the very common action, now,to foreclose a mortgage, the plaintiff sets forth the condition of the bond, showing that a certain amount is due, and claims such, amount, may not the defendant state, as new matter, that he has from time to time made payments upon the bond, stating the amounts, and thus reduce the amount claimed without pretending in his answer that he has paid the whole amount? Would it occur to us that such an answer was objectionable? I think not. Where is the authority for such an answer ? It is to be found only in the 2nd sub-division of section 149 of the Code, and under the word defence.
Without, however, going beyond the precise question presented in this case, in my opinion, the answer, containing a statement of the partial payment of the plaintiff’s demand, as set forth in his complaint, is authorized by the Code, and the
The order of the special term should he affirmed but without costs.