Starbuck v. Dunklee

By the Court — Berry, J. — This is an appeal from an order striking out certain portions of the defendant’s answer. A preliminary motion was made to dismiss the appeal on the ground that it does not lie from an order of this character. The motion must be denied. Subdivision 3, section 1, page 133, Laics 1861, gives a right'of appeal “from an order involving the merits of the action or some parts thereof.” The order striking out determines that certain portions of the defence set up are insufficient as stated. If what was stricken out constituted a meritorious defence and was necessary to be pleaded, then the effect of the order would be to deprive the defendant of the right to put it in evidence. An order which may have this effect clearly goes to the merits of the action or some parts thereof. It is held in New York that all orders made in the progress of a cause involve the merits of [173] the action, except such as relate merely to matters resting in the discretion of the Court or to questions of practice. Crager vs. Douglas, 2 Code R., 123; St. John vs. West, 4 How. Pr., 331; Tollman vs. Hinman, 10 Id., 90; Burhans vs. Tibbitts, 7 Id., 18; see also Trustees Penn Yan vs. Forbes, 8 Id., 285; Whitney vs. Waterman, 4 Id., 314. On the merits we think it obvious that the allegation as to the value of the services rendered was properly stricken out. The defendant claims to repudiate the contract on which this action is brought, on the ground, that the 5th day of December, 1863, when it was executed, was Sunday. Taking judicial notice of the calendar we find it to have been Saturday. As the defendant makes no other objection to the validity of the contract, and as this is an action for damages arising from an alleged breach, it needs no argument to show that having admitted the contract to be in full force, and that contract containing an' agreed price for certain specified services to be rendered by the defendant, it is entirely immaterial whether the services which he actually performed tin ■ tier the contract were worth more or less than that agreed price. As to the portion secondly stricken out, the defendant admits that he received a large quantity of cord-wood, property of the plaintiff, and delivered it at St. Paul pursuant to the contract; but he adds that he has no knowledge or information sufficient to form a belief whether the quantity of said wood was as státed in the complaint or otherwise. This mode of denial is plainly objectionable. As the learned Judge of the Court below observes, “the defendant is presumed to have some knowledge, &c., as to the quantity of wood actually transported by himself. It was a large quantity he alleges before, but he does not know in this part of his answer whether it was 290J or otherwise.” If there was any special reasons why he did not know, he should have stated them or shown them in justification of his answer. See Richardson vs. Wilton, 4 Sand. S. C. R., 709. The last denial'is also clearly bad. If a defendant chooses to adopt this general form of denial, he must still be definite and positive ; he must deny what he has not ad [174] mitted. A denial of each, and every allegation of the complaint, except what the Court may construe to be admitted in the'foregoing part of his answer, is both indefinite and uncertain. A truthful denial implies that he knows precisely what he is denying. How can he know beforehand what construction will be put upon his pleading by the Court ? The order is affirmed and the action remanded.