Eells v. Dumary

Chase, J. : . The demurrer should be sustained. Title 1 of chapter 6 of the Code of Civil Procedure plainly prescribes what shall be contained in the pleadings. An answer must contain, first, a general or specific denial of each material allegation of the complaint controverted by the defendant, and, second, a statement of any new matter constituting a defense or counterclaim. The orderly way of arrang, ing an answer is to have it start with admissions and follow with denials, defenses, either partial or complete, consisting of new matter, and then with a counterclaim or counterclaims, if any. While a denial is sometimes called a defense (Staten Island M. R. R. Co. v. Hinchliffe, 170 N. Y. 473) it remains a denial only, although it is called by another name. ' If a denial is called a defense it does not for that reason become a defense under the 2d subdivision of section 500 of the Code of Civil Procedure,'and the use [107] of the word “ defense ” in connection with a denial is, in nay judgment, unfortunate and confusing. Denials and defenses consisting of new matter are independent parts of an answer. In the opinion in Douglass v. Phenix Ins. Co. (138 N. Y. 209) it is stated that “ The allegations of the complaint not denied in the affirmative defense are, for the purposes of the question now presented, to be deemed admitted. The affirmative defense is to be treated as a separate plea, and the defendant is not entitled to have the benefit of denials made in another part of the answer unless repeated or incorporated by reference and made a part of the affirmative defense.” (See Boyd v. McDonald, 35 N. Y. St. Repr. 484; Sbarboro v. Health Dept., 26 App. Div. 177; Craft v. Brandow, 24 Misc. Rep. 306; Delaney v. Miller, 84 Hun, 244; Wiley v. Village of Rouse's Point, 86 id. 495 ; Brookline National Bank v. Moers, 19 App. Div. 155; Douglas v. Coonley, 156 N. Y. 521; Ivy Courts Realty Co. v. Morton, 73 App. Div. 335.) The first four paragraphs of the answer consist of admissions and denials, and they are followed by the 5th paragraph, which is the part of the answer demurred to by the plaintiff. The part of the answer so demurred to is not a denial, or a part of a denial, but it is new matter constituting an alleged affirmative defense, and unless it states a complete defense it is insufficient in law upon the face thereof. The argument is made that because the 5th paragraph of the answer does not in terms start out with a statement that it is a defense, or a separate or affirmative defense, it should be considered as a part of the defendant’s general defense. It is a part of the answer, but it is a separate part of the answer alleging, under the 2d subdivision of said section 500, new matter, and it must be considered apart from the admissions and denials that precede it. An examination of the allegations of the first four paragraphs of the answer show that they are not intended as an affirmative defense, or as. a part of an affirmative defense, but that they are included in the answer for the purpose of putting the plaintiff to his proof as to such parts of the complaint as are denied by said paragraphs. The 5th paragraph starts with the words “ defendant further answering said complaint.” That is, for a further answer the defendant states new matter as an affirmative defense. This [108] paragraph, by whatever words it may be introduced, or.by whatever name it may be called, is intended to be and is an alleged separate and affirmative defense. The demurrer thereto may be technical, but it is a right that the plaintiff has under our form of pleading, and the decision of our courts in. relation thereto, and it should be sustained, unless the paragraph to which it relates in itself is a complete answer to the plaintiff’s complaint. General or specific denials as such are improper in an affirmative 'defense (Stieffel v. Tolhurst, 55 App. Div. 532), but the statement of new matter must be sufficient in itself if true to constitute a complete defense: Treating the allegations of the complaint not controverted in the affirmative defense as • admitted, the allegations of the 5th paragraph of the answer, if true, do not constitute a defense. The order and interlocutory judgment should he affirmed, "with costs. All concurred, except Parker, P. J., dissenting in an opinion, and Chester, J., not sitting.