75 N.Y.S. 291 | N.Y. Sup. Ct. | 1902
The action is against the directors of a membership corporation, as authorized by section 11 of chapter 559 of the laws of 1895, to recover for supplies sold to the corporation between May 6th and Hovember 27th, i'900.
There was no dispute on the trial as to any of the facts, except
When we look at the complaint, however, we find that it states only one cause of action, viz., against all of the defendants for the whole amount due from the corporation, under an allegation that the defendants and each of them were directors during the whole period of time covered by the sales. If too many defendants be sued on the cause of action alleged, that would not make a misjoinder of causes of action. The case would only be this, viz., that the cause of action alleged would not be made out against some, and the complaint would have to be dismissed as to them, which is an every day occurrence.
We have therefore only to see whether the cause of action be made out against all of the defendants, and, if not, to dismiss it in the case of those against whom it is not made out, and give judgment against the others only.
The question here is only one of pleading, for no defendant has taken issue on the allegation of the complaint that each and all of the defendants were directors during the said period. The" allegation of paragraph I of the complaint covers that head, and is as follows:
“At all of the times hereinafter mentioned, defendants herein were directors, and each of them was a director of the Staten Island Cricket and Baseball Club, a domestic membership corporation duly created ”, etc.
Six of the defendants answer together, and each of the remaining four answers separately. All of the answers are evidently the work of the same learned pleader. They are very cunning.
. They are also of that curious structure and verbiage now grown . to be common with some of our learned pleaders in this part of the state.
The answer of the six, which is joint and several, purports to deny the said allegation of paragraph I of the complaint, as follows:
*252 “ Deny that all the defendants herein were directors, and each of them was a director of the Staten Island Cricket and Baseball Club during the times alleged in paragraphs numbered I and II of the complaint ”; paragraph II, however, contained no allegation on that head, but only of the sale of the goods. ü
This denial in haec verba is not a denial of the allegations of the complaint. It is not a prescribed or permissible form of denial (Code Civ. Pro. § 500). It is a negative pregnant, i. e., it is preg-. nant with the truth of the allegation of the complaint that these answering defendants were directors during the period alleged (Kelly v. Sammis, 25 Misc. Rep. 6; Laurie v. Duer, 30 Misc. Rep. 154). They only deny the allegation that each and all of the defendants in the action were directors; they carefully refrain from denying that they themselves were. All of the ten might not have been, each, i. e., every one of them, might not have been, and still the six thus answering together might have been.
In each of the separate answers of the four other defendants there is only the same denial in the same Words on the head in question. Each denies the allegation that each and all of the defendants were directors during the period alleged; he does not deny that he was.
Each answer after getting through with this and other denials sets up an alleged “ defence ” of misjoinder of causes of action. Such defence starts out with a repetition, word for word, of the "so-called denial quoted above. As such denial is of no effect, as has been seen, nothing additional needs to be, or would be said of it, except for the habit which has grown up of repeating “ denials ” in “ defences ”, as though they could be a part thereof. Of course, as is elementary, a denial of the allegations of the complaint, or of any of them, cannot be a part of a “ defence ”. It is irrelevant there, and will he struck out on motion, notwithstanding that no issue can be joined on it if it be left there, for it is an elementary rule of pleading which has existed from the beginning that an answer, demurrer or reply, only takes issue upon the relevant and material allegations of the pleading or plea upon which issue is joined. A “ defence ” can consist only of “ new matter constituting a defence ” (Code Civ. Pro. § 500), and it has to be “ separately stated” (§ 507); i. e., matter which cannot be given in evidence under a denial or denials of allegations of the complaint. If it could be given in evidence under a
Such “ defence ” in each answer next contains allegations of fact which show that only the six defendants who answer together, and one other, were directors during the whole period, and that the other three were such for only parts thereof; and this, as has been said, to make out a “ defence ” of misjoinder of causes of action.
But it is an elementary rule of pleading that facts alleged in a “ defence ” (or in any plea in bar or abatement, if any such survive in our practice), which are inconsistent with and contradictory of allegations of the complaint, cannot nevertheless supply the place of the prescribed denial of such allegations, and put them in issue. Every allegation of the complaint not formally denied as required by the Code (§ 500) stands as admitted. The test of a pleaded defence is, as has been seen, whether if all the allegations of the complaint be taken as admitted, it will nevertheless defeat the action. The allegation of this complaint that all of the defendants were directors during the whole period has to be taken as admitted for lack of a denial; and against that admission all contradictory or inconsistent statements in the “ defence ” necessarily go for naught. Against such admitted fact alleged in the complaint they cannot stand up. A “ defence ” in an
To sum up all, the defence of misjoinder is a nullity, and there is no denial of the main allegation of the complaint.
Judgment for the plaintiff against all of the defendants.
