79 N.Y.S. 244 | N.Y. App. Div. | 1902
Lead Opinion
The action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negli
The answer admits that the defendant is the owner in fee of the reversion, but denies that he is the owner of the present existing estate in said premises or that he has possession, occupancy or control of the same, and puts in issue the other material allegations of the complaint.
Each of the defenses to which the demurrer relates is pleaded as a further and separate defense, and the first subdivision of each recites that the defendant “ reiterates and repeats the allegations ” in that part of the answer preceding the separate defenses, specifying each paragraph thereof, which includes both admissions and denials; and all, except the sixth, contain the allegation that the defendant never had knowledge or notice of any defect or weakness in the construction of the building or any part thereof. In the second defense it is alleged that for many years prior to the accident the building described in the complaint was properly and safely constructed by skilled and competent persons and of the best material, and was in a safe and secure condition, and that it was in the exclusive occupation, care and custody and control of a tenant for years continuously thereafter. In the third defense it is alleged that the building was • erected by a tenant for years, who was in the exclusive occupation, care, custody and control of the premises at
Each of these defenses contains denials of material allegations of the complaint, and, while such denials might have been stricken out upon motion if the plaintiff were aggrieved thereby (Code Civ. Proc. § 545 ; Flechter v. Jones, 64 Hun, 275 ; State of South Dakota v. McChesney, 87 id. 293 ; Stieffel v. Tolhurst, 55 App. Div. 532), yet so long as they thus remain a demurrer will not lie, even though the other matter pleaded does not constitute a defense., (Flechter v. Jones, supra ; Stieffel v. Tolhurst, supra ; Holmes v. Northern Pacific Railway Co., 65 App. Div. 49 ; Wintringham v. Whitney, 1 id. 219.)
But there is another reason why demurrer will not lie in this case. It is not seriously contended that the matters set up in each of these defenses, if true, will not constitute a defense to the action; and it is quite clear that if they be established the plaintiff cannot succeed. The principal, if not the sole contention of the plaintiff is that none of these defenses contains new matter, but that all are provable under the preceding denials, which is undoubtedly true. It does not follow, however, that the defenses are insufficient in law upon the face thereof. The Code provides
In the case of Bogardus v. Metropolitan St. Ry. Co. (62 App. Div. 376), which was an action for personal injuries, we held that the plaintiff was not aggrieved by an allegation in the answer setting up that the accident occurred through his contributory negligence and without negligence on the part of the defendant, and that his motion to strike this out as irrelevant or redundant should be denied. The reasons for that decision do not apply to any of the counts of this answer except the last, and we do not intend to express any opinion as to whether the other counts of the answer are so unnecessary and of such a character that the court would be justified in striking them out as redundant. There should be, and we think there is, a remedy by motion for striking out redundant matter, even in those cases where it embraces an entire count pleaded as a separate defense. Recourse may and should be had to this remedy where there has been a departure from the usual practice to the prejudice of the adverse party by unduly lengthening a pleading or otherwise confusing or obscuring the issues.
It follows that the interlocutory judgment should be affirmed, with costs.
Patterson and O’Brien, JJ., concurred.
Concurrence Opinion
I concur in the conclusion of Mr. Justice Laughlin, except as to the fourth defense. I do not think, however, that where new matter is pleaded as a separate defense to the action, and there are repeated as a part of that defense denials of allegations of the complaint which have no relation to the new matter pleaded, the court is prevented from determining upon demurrer whether the separate defense as a whole is sufficient in law upon the face thereof. Each separate defense must be taken as a whole, and if the facts alleged are not sufficient as a separate defense, as distinguished from a denial of allegations alleged in the complaint, then a demurrer to that separate defense should be sustained, although as a part of that defense material allegations of the complaint are denied. I agree with Mr. Justice Laughlin, however, that as to each of the defenses, except the fourth, the facts as alleged constitute a defense to the action. By the fourth defense the defendant, by realleging allegations in paragraphs 1 to 5 of the answer, admits that he is the owner of the building, and then alleges that the planning, erection and construction of the building described in the complaint was fully and fairly committed to competent and skilled architects and engineers, qualified for such work, under instructions to plan and erect a thoroughly safe and substantial structure; that the defendant was not skilled or informed in said matters, and entire reliance was placed in said architects and engineers in all matters pertaining to the preparations of plans and specifications, and to the superintendence and inspection of said work and construction and materials; that the defendant did not interfere with the said architect or engineer in the discharge of their duties; that the work of constructing-said building was intrusted to independent contractors who were skilled and competent persons qualified for such work and had contracted to supply the best materials and the most skillful and careful labor, and to do all to the satisfaction of the architects and engineers, and that the defendant never had any knowledge or notice of any defect in the construction or condition of said building. The plaintiff was injured while in Fifth avenue in the city of New York, a public street, by the fall of brick, mortar and other building materials from the building which the plaintiff owned. In such case the rule res ipsa loquitur applies, and from the incident itself the jury
I think, therefore, that this separate defense was insufficient and that as to that defense the demurrer should have been sustained.
Hatch, J., concurred.
Judgment affirmed, with costs.