Smith v. Gratz

Hawes, J. — The motion is for judgment on the answer as frivolous. The answer denies having any knowledge or [275] information sufficient to form a belief as to any or all the allegations in the complaint contained and, therefore, denies the same, except as hereinafter specifically admitted. The facts which were specifically admitted having been demurred to the plaintiff moves'for judgment on this general denial, relying upon the case of McEnroe agt. Decker (58 How., 250). The form of pleading here used is one well known to the profession and has been sanctioned for years. That it is evasive must be admitted, and if the views expressed in McEnroe agt. Decker can possibly be sustained by precedent it should be done in furtherance of what I deem a substantial advance upon the form of pleading that has long prevailed, but which gives apparent opportunity for false and dilatory defenses. I am unable, however, to satisfy myself that such is the law as it stands at present. The authoritative cases relied on in McEnroe agt. Decker are The People agt. Snyder (reported in 41 N. Y., 400) and The People agt. Northern Railroad Co. (42 N. Y., 217). My attention has been called to a memorandum in the Albany Law Journal of July 10,1880, in which the cases referred 'to in McEnroe agt. Decker are criticised, and the case of Allis agt. Leonard referred to. The case of Allis agt. Leonard (reported in 46 N. Y., 688, and in full in Albany Law Journal of July tenth) is valuable only as being a late utterance of the court of appeals on that subject. It cannot be assumed that judge Daniels, in the case of People agt. Snyder, intended, by mere dictum, to declare as frivolous a form of pleading that has been so long recognized in all the courts of the state since the adoption of the Code. It is true that he criticises and declares it peculiar, but in no sense did he pass upon it; and from the incidental manner in which he' referred to it, it can scarcely be deemed a judicial expression of opinion. As a form of good or bad pleading it was in no sense discussed. The case of The People agt. Northern Railroad Oompa/ny is very far from deciding this question in plaintiff’s favor; and in so far as it is a decision it may be said to be in support of [276] defendant’s view and could well have been cited by him. The allegation in The People agt. Northern Railroad Company was a general denial upon information, and denial except as to matters specifically admitted, and was similar to McEnroe agt. Decker and the case at bar. The court says: “ Assuming that a denial by the defendants in their answer of each and every allegation and averment in the complaint in this action contained, not therein before specifically admitted, is sufficient' to controvert the matters, if any, not so admitted and put them in issue, it appears by an examination of its contents that no material fact is denied.” He then proceeds to analyze the admissions and finds that they are so complete and absolute that no issue is created. This is all that is determined in the case so far as I can comprehend. These two cases are the only authoritative cases that can be possibly cited as supporting the view expressed in McEnroe agt. Decker, and it is submitted that, as an authority upon the points at issue, they-must be deemed of a very doubtful character. The case of Allis agt. Leonard, however, is in point and cannot be construed otherwise than as a direct ruling upon it. The case of The People agt. Snyder was decided in December, 1869, and Allis agt. Leonard in November, 1871. In Allis agt. Leonard the action was upon a promissory note held by the transferee against the maker, and the answer denied “ each and every allegation of the complaint except those admitted.” The admission was the “making and delivery" of the note.” The court declares that “ as the question seems to have been disposed of wholly on the question of pleading it is necessary to examine the complaint and answer,” and in that connection says: “ It (the answer) denies each and every allegation except that expressly admitted. We think that this was a sufficient denial of the transfer of the note. The defense was meritorious, if true, and the pleading should have been liberally construed for the purpose of admitting it. But a strict construction would lead to the same result.” There can be no question of the intent of [277] the court of appeals in this case to pass upon the point in issue, and to pass upon it decisively. While I could wish another construction I am compelled to yield to what, in my opinion, must be deemed the controlling decision upon this question, and which fully establishes the validity of this form of pleading. Motion for judgment on the answer as frivolous denied, but without costs.