Waters v. Curtis, 13 Daly 179

Waters v. Curtis

13 Daly 179 | New York Court of Common Pleas | 1885

Van Hoesen, J.

This appeal must be dismissed. The order appealed from did not affect a substantial right, nor did it involve the merits. The only question was whether a certain denial was in due form. The General Term of the City Court decided that it was, reversing the decision of the Special Term, which held that the denial was insufficient. All that the General Term decided was that the denial was sufficient to put in issue certain allegations of the complaint. It is obvious that the decision merely affected a mode of procedure, and did not deprive the plaintiff of any substantial right, or touch the merits of his case. An appeal does not lie from such a decision (Whitney v. Townsend., 67 N. Y. 40).

*180In Tabor v. Gardner (41 N. Y. 232), the Court of Appeals decided that “an order of the General Term, reversing an order of the Special Term, striking out an answer, is not appealable to the Court of Appeals.” Section 3191 is far less broad in its provisions than section 190, and there is, therefore, less reason for contending that this court has jurisdiction of questions of practice arising in the city court.

It may not be improper to say, however, that the denial that was stricken out, and afterwards by the decision of the General Term restored, was bad because it contained a negative pregnant. A want of familiarity with the English language made the pleader say something that he had no intention to say. He doubtless meant to say that he had no knowledge or information sufficient to form a belief as to any allegation of the complaint that he had not specifically denied. What he did say, is that he has “ no knowledge or information &c. &c. as to each and every allegation of the complaint that he had not specifically denied. The words, “ each and every,” mean “ all.” In other words, the pleader says, in effect, that he has no knowledge or information &c. &c. as to all the allegations of the complaint &c. This carries with it the implication that he has knowledge or information as to a part of those allegations. His denial is pregnant with an implied admission, and it is had, because, as I have said, it is a negative pregnant (Pomeroy on Remedies §§ 618 et seq.).

The appeal must be dismissed, with costs.

Larremore and J. F. Daly, JJ., concurred.

Appeal dismissed, with costs.