Leonorovitz v. Ott

Gaynor, J.: The decision in Saleeby v. Central R. Co., 40 Misc. Rep. 269, is cited, in which it is said: “ I think the affirmative defenses are further faultily pleaded in that they fail to contain any sufficient denial of the allegations of the complaint, which, under such conditions, must, for the purpose of the demurrer, he taken as true.” This is so strange that I must regard it as in some way a mistake of the editor or printer. Denials of allegations of the complaint cannot be a part of a defence. If put there they would be struck out on motion. A defence can consist only of “ new matter ”, i. e., matter outside of any issue raised, or that may be raised by a denial, and which, taking all of the allegations of the complaint to be true, is nevertheless a defence to the action, such as payment, a general release, fraud, the truth of a libelous publication, etc. (Code Civ. Proc., § 500; Burkert v. Bennett, 35 Misc. Rep. 318). Its sufficiency has always to be tested on the assumption that all of the allegations of the complaint are true. How odd, then, to suggest that a defence may be deemed bad on demurrer for having no denials in it. That the plaintiff was a trespasser on the defendant’s premises when bitten is no defence. One who allows a biting dog to go at large, knowing it to be such, is liable if it bite a trespasser (Loomis v. Terry, 17 Wend. 496; Kelly v. Tilton, 3 Keyes, 263). The remaining words of the so called defence, viz., “and that whatever damages or injuries she sustained, if any, were the result of the wrongful, negligent and unlawful act of the plaintiff”, seem to refer to the plaintiff’s trespass. If not, they are mere hard words, which amount to nothing in pleading, as much as some learned pleaders seem to love them. The demurrer is sustained.