44 A.D. 634 | N.Y. App. Div. | 1899
-The following is the opinion of the court below:
The several causes of action and ■defenses set up,in a'pleading should be distinguished by "the phrase, “for a further cause of action or defense;” or something •equivalent. (4 How. 301.) if stated in paragraphs separately numbered it is sufficient (4 Law Bull. 31); but-the statement of facts in separately numbered paragraphs, or alleged by mistake as separate causes of action, does not vitiate the pleading, if but a single •cause of action or defense is, in fact, pleaded. (Harris, J., 14 How. 458, 459; Daniels, J., 9 Civ. Proc. Rep. 28.) The paragraphs of the .answer here should be. read together and ■construed to contain.but one defense — a denial of the plaintiff’s right of possession, .and an allegation of a special property and right of possession in the defendant. But the complaint and answer are examples of" the vicious practice oí separately numbering the paragraphs of a pleading intended to set up only a single cause of action or defense, a practice which serves no useful purpose in pleading, and.often tends to mislead or confuse. It is not required. The statement of ¿he facts constituting each cause of action and each defense or counterclaim must be separately stated and numberedrno othermimbering is required." (Code Civ. Proc. §§ 483, 507.) The answer sets up a complete defense, being expressly within the terms of section 1720 of the Code. The complaint, alleges that "the plaintiff derived his title and right of possession from “one” David B. Cassel, ‘andafter the denial in the answer, it is alleged that “one” David B. Cassel delivered the goods io the defendant upon an agreement that the defendant should hold and sell the same to satisfy his general balance of account against Cassel; amounting to $2,300, and return the surplus to Cassel, and that at no time since the consignment have the goods been worth more than $2,300. etc. It is somewhat hypercritical for counsel to urge that there is no allegation in the answer “ showing who this Cassel was,” when the plaintiff himself alleges the ownership of David B. Cassel as the source of liis "title. Demurrer overruled, with costs. Decision signed.