Kelly v. Sammis

53 N.Y.S. 825 | N.Y. Sup. Ct. | 1898

Gaynor, J.:

Instead of being a general denial the answer consists of five separate denials of parts of the complaint which each denial sets out and denies in haec verba. Each of these denials is a negative pregnant. It is pregnant with the substantial truth of the allegations professedly denied. The denial in haec verba of allegations containing dates, conjunctives and disjunctives, adjectives, and the like, must as a rule be consistent with the substantial truth of the allegations, in which case there is no denial (Flack v. O’Brien, 19 Misc. Rep. p. 401; Stuber v. McEntee, 142 N. Y. p. 206). This form of denial, even when not a negative pregnant, is very troublesome to courts, and especially trial courts. It imposes the necessity of a .careful scrutiny and comparison of the complaint and answer to ascertain what parts are denied, and whether there be any which are ,not denied; whereas a general denial in the prescribed and scientific form of each and every allegation of the complaint, or pf each and every allegation of a stated paragraph or subdivision of the complaint, which is the form required by the Code, shows without any scrutiny what is denied; and if there be something not to be denied, it is easy to cover that by adding to the general denial an exception covering it, viz., “ excepting ”, etc., briefly designating that which is excepted The troublesome form of denial presented by this answer seems to have become quite general because of some remarks of the judge writing in Baylis v. Stimson (110 N. Y. 621). But no such meaning was intended. The denials there were of matter beginning at such a word in such a folio and ending at such a word in another folio, and that form of denial was condemned, more especially, no doubt, for the reason that in printed appeal books such original folios are seldom preserved.

But instead of moving to make these denials more definite and certain, the motion should be for judgment on the answer as frivolous. "Why should the plaintiff seek to make a bad answer a good one?

All of the answer after subdivision V is irrelevant and redundant matter. It is not pleaded as “ a defense ” nor could it be, for.it does not constitute a “ defense ”. It is simply verbiage. A general denial raises the whole issue upon the complaint. The answer should stop there unless there be new matter constituting a defense, and then that must be pleaded in so many words “ as a defense ”. Anything which may be proved under a general or a special denial is not a defense and must not be pleaded as such, nor should it be set out at all (Code Civ. Pro. secs. 500, 507; Flack v. O’Brien, 19 Misc. Rep. 399; Green v. Brown, 22 Misc. Rep. 279; von Hagen v. Waterbury Mfg. Co. 22 Misc. Rep. 580).

The motion to make more definite and certain is denied. The motion to strike out is granted.