White v. Koster

35 N.Y.S. 369 | N.Y. Sup. Ct. | 1895

PER CURIAM.

The order appealed from denied plaintiff’s motion to make certain allegations of the answer more definite and certain, by stating the character of the license which defendants held from the mayor to maintain a place of amusement at Twenty-Third street. The complaint alleged a contract with the plaintiff’s assignor, Marie Lloyd, by which she agreed to take part in certain performances, to be given by the defendants, for a period of nine weeks, and that she was induced to make such contract by the representations of the defendants that they had a variety theater on Twenty-Third street, near Sixth avenue, in the city of New York, where they were authorized to conduct a theatrical business; but that the defendants did not have, at the time of the making of the contract, or during the period provided for its continuance, a theatrical license allowing them to conduct a theater of any kind at such place. The answer alleges possession of a place on Twenty-Third street by the defendants, where public performances of such character as that contemplated in the contract could lawfully be given, and that they held a license from the mayor to maintain such place for such public performances. The answer, therefore, definitely and certainly put in issue the allegations of the complaint referred to, and more than that the plaintiff is not entitled to have on a motion of this character. What he seeks to obtain is the evidence upon which the defendants rely to support their denials of plaintiff’s allegations, and their affirmative allegations that they held a license from the mayor authorizing them to give such performances as the contract contemplated. That evidence the special term properly decided they were not entitled to have, under the guise of making the answer more definite and certain. The defendants opened their second defense with the phrase, “Reiterating the denials and repeating the allegations contained in their first defense.” As an affirmative defense not including a counterclaim necessarily admits and avoids the cause of action set out in the complaint, a denial, general or specific, cannot be included in and form a part of such defense. The denial may be pleaded in the same answer as a separate defense, but not as a plea of new matter. State v. McChesney, 87 Hun, 293, 34 N. Y. Supp. 362. But, while the defendants’ attempt to repeat the denials was error, they had the right to incorporate the affirmative allegations of the first defense in the second one by either repeating, or by such reference as,should make them a part of the affirmative defense. The motion was, therefore, too broad, and the moving party was not entitled to have his motion prevail to the extent asked. The denial of his motion, therefore, does not call for reversal.

The order should be affirmed, with $10 costs and printing disbursements.