Schlesinger v. McDonald, 94 N.Y.S. 721

Schlesinger v. McDonald

94 N.Y.S. 721 | N.Y. App. Div. | 1905

Ingraham, J.:

We do not think the court below was justified in striking out as sham denials of material portions of the complaint in an action at law whereby the general issue was raised as to such allegations whether the denials are absolute, upon information' and belief, or upon an allegation that the defendant has not knowledge or information sufficient to form a belief as to the truth of such allegations. It has been the universal rule since Wayland v. Tysen (45 N. Y. 281) and Thompson v. Eric R. Co. (Id. 468) that “ A verified answer *571which interposes a general denial to the complaint, is tantamount to a plea of the general issue under the former system of practice at law; that such answer gives to the defendant the right to require the plaintiff to establish by proof all the material facts necessary to show his right to a recovery; and that it cannot be stricken out as sham, although shown by affidavits to be false,” and that the same rule applies when the answer denies a material allegation of the complaint. Gallagher v. Merrill, 13 App. Div. 182; Robertson v. Rockland Cemetery Improvement Co., 54 id. 191.) The case of Rodgers v. Clement (162 N. Y. 422), cited by the learned counsel for the respondent, is not relevant, as that was an appeal from a judgment after a trial, and in that case the same allegation of the answer denied certain allegations of the complaint and made certain admissions. As stated by the court, “ It will be seen that this allegation of the answer contains a denial, an admission and an affirmative averment,” and the allegation was upon the trial to be taken as a whole, denying only the allegations of the complaint not admitted, either by the express admission or the allegation of new matter. In this case the denials of the allegations of the complaint are specific and independent of the new matter pleaded, but it is sought to sustain the order because of these allegations of new matter which are pleaded as separate defenses and which are alleged to be inconsistent with the denials of the allegations of the complaint. The denial of the material allegations of the complaint being complete in themselves, raised the •general issue as to the allegations denied; and the fact that certain allegations of new matter were inconsistent with the. denials, does not justify the court in striking out the denial as sham any more than the denial would justify the court in striking out the new matter alleged as a separate defense as sham. But these allegations of new matter do not specifically allege that the notes which are alleged to have been paid and to have been void for usury were made and delivered by the defendant; and if the allegations are to be taken as admissions of the defendant,' they must be taken as a whole, and the plaintiff cannot use them to obtain an advantage without at the same time admitting that the notes were usurious and void and that they have been paid.

We think the defendant was entitled to require the plaintiff to prove these allegations which the answer denied by evidence upon *572the trial, and that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’Brien, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.