53 N.Y. 497 | NY | 1873
The right to plead several pleas did not exist at common law, but was given by statute to enable a defendant to avoid duplicity in pleading, and at the same time set up several distinct matters in defence. (1 Chitty's Pl., 560; 2 R.S., 352, § 9.) The Code has substituted a single answer as a distinct pleading, with directions as to its contents, and permission to the defendant to set forth in separate statements as many defences as he may have, all the defences thus stated constituting the single answer allowed by the statute. (Code, §§ 149, 150.) The distinction between the answer as a pleading, and one or more several defences set forth in the answer, is observed throughout the statute regulating the forms of pleadings, and the one is never confounded with the other or a single defence spoken of as an answer.
Sham and irrelevant answers and defences may be stricken out on motion, the same section providing for striking out the entire answer, or separate defences making a part of the answer. (Code, § 152.) If one or more defences are stricken out, they no longer constitute a part of the pleading, but the remainder of the answer alone remains to make a part of the record in the future. So, too, the plaintiff may demur to one or more defences or counter-claims, and reply to the residue of the counter-claims. The permission is not to reply to one or more of several answers. (Code, § 153.) A frivolous pleading is treated as an entirety and is not stricken out; but whatever action may be had in respect to it, whether condemned as frivolous or not, it remains a part of the record and makes a part of the judgment roll. (Briggs v.Bergen,
Upon a reconsideration, we see no reason to change our views; on the contrary we are satisfied that the section referred to admits of no other interpretation, and that an answer as there used means the entire answer as a distinct pleading, and not one or more parts of an answer, or one or more of several defences as constituting the answer. An answer is one thing, and well understood when referred to as such, and a single defence making a part of an answer is quite another thing; and the one is never confounded with the other, either in the statute or in popular legal phraseology.
Without, therefore, considering the very serious and doubtful *500 questions presented upon the argument at bar and considered by the court below, the order must be reversed and the motion denied, with costs.
All concur.
Ordered accordingly.