Kager v. Brenneman

54 N.Y.S. 94 | N.Y. App. Div. | 1898

Lead Opinion

O’Brien, J.:

It will be noted that the plaintiff treats the paragraphs of the amended answer separately by demurring to each of them as though they had been interposed as separate and distinct defenses, and they are severally arraigned as “insufficient in law upon the face thereof.” Unless the construction the plaintiff thus places upon the answer is correct, the demurrer is bad in form, for it has been repeatedly held that a demurrer will not lie to separate parts of a defense, but that for the purpose of determining its sufficiency the defense it to be construed in its entirety. The underlying question, therefore, is does this answer set forth, or purport, to set forth, more than a single defense ? Because, if it does not, for the reasons stated, the demurrer to a separate paragraph cannot be sustained." The Oode requires that where the defendant intends to interpóse more" than a single defense, such defenses must be separately stated and numbered. (§ 507.) In th'e answer under consideration the paragraphs are not numbered or stated as separate defenses, and in form it contains bu.t a single defense. Notwithstanding, the respondent urges here, as he did below, that this does not prevent the paragraphs from being treated as separate defenses, and relies, upon certain authorities that a failure to separately state and number them, or the omission of the formal words of the Oode, does not prevent allegations in the pleadings from being treated, as separate defenses. Although somé authorities may be found to support such a proposition,.none of them go so far in overriding the provisions of the Oode as to hold in doubtful cases where different constructions can be given to the pleadings, that that construction shall be applied which is in conflict with the provisions of the Oode requiring that, when more than one defense is alleged, it shall be separately stated and numbered. • Thinking, as we do, that the; pleader intended to set forth but a single defense, the demurrer is not only had in substance, but it. "is also bad in form, in that it "is indefinite in being directed to new matter contained in certain paragraphs, without pointing out what- new matter is particularly referred to.

Our conclusion, therefore, is that the judgment appealed from is erroneous and should be reversed,, with costs, but with leave to the plaintiff to plead over on payment of costs in this court and in- the •court below. "

Van Brunt, P. J., Barrett, Rumsey and Patterson,, JJ., concurred.

---

Concurrence Opinion

Barrett, J. (concurring) :

I "agree with the respondent that, although, under section 507 of the Oode of Civil Procedure, each defense. in ■ an answer must he separately stated and numbered, yet it is not necessary that the formal words “as a separate defense” should be used. Their equivalent will answer. It is, indeed, sufficient if the new matter be so stated that these formal words or their equivalent may fairly be implied. In other words, this requirement of section 507 is satisfied when we find in a separately-numbered paragraph an affirmative allegation of exclusively new matter constituting a defense; and this separately-numbered paragraph is complete in itself, and is not combined with denials or references to any other defense. Tested by this rule the demurrer is bad. The 1st paragraph of the answer is a mere admission. Eeither expressly nor impliedly does it purport to be a plea of new matter constituting a defense. The latter observation applies to the 2d paragraph as well. In this 2d paragraph we have both admissions and denials. In connection with the admission there is an affirmative allegation, the tendency of which is to qualify the admission and nullify its .effect. This combination of admission and qualifying allegation is. in no sense a separate defense to the causes of action set forth in the complaint. It is quite clear that the- three paragraphs of the answer were pleaded in their entirety as a single defense. The ¡Daragraphs, it is true, were separately numbered, not,' however, because each is a separate defense, but because each relates to a different phase of the complaint. ;

I, therefore, concur in the reversal.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment reversed, with costs, with leave to plaintiff to plead over on payment of costs in this court and in the court below.