Simmons v. Simmons — 21 Abb. N. Cas. 469

Majority

p. 469

SIMMONS v. SIMMONS.

N. Y. Supreme Court, First District, Chambers ;

July, 1888.

Headnote

1. Pleading; partial defense; definiteness.] Where portions of an answer as pleaded do not set up a complete defense to the cause of action contained in a complaint, and the pleader omits to state that the defense is pleaded as a partial defense, an order will be granted requiring the defendant to make those allegations more definite and certain, so that it will clearly appear whether such paragraphs are intended as a complete or partial defense.* Hence in an action for alienating the affections of a husband, allegations of his previous divorce, or of previous separation, should be stated as a partial defense.

2. Forms.] The directions of the order in such a case.

Motion to make allegations in an answer more definite and certain.

Phebe B. Simmons sued Nellie F. Simmons for damages for alienating the affections of the plaintiff’s husband, Abram Cr. Simmons.

The complaint, after stating plaintiff’s marriage in 1857, and subsequent harmonious relations with her husband, alleged that defendant, in 1873, began to alienate plaintiff’s husband’s affections, and set forth facts showing improper relations of her husband and the defendant; plaintiff’s frequent forgiveness of her husband ; his desertion of her in 1882; and his marriage in Massachusetts with the defendant after he had pretended to have obtained a divorce from plaintiff in Rhode Island.

The defendant’s answer (1) admitted plaintiff’smarriagé, and (2), denied each and every other allegation of the complaint ; and then alleged as follows :

* See on pleading a partial defense, Thompson v. Halbert, p. 266 of this vol.

p. 470

III. Said defendant further claims that on the day of November, 1887, a decree of judgment of divorce was duly granted to the said Abram Gf. Simmons against the plaintiff by the supreme court of the State of Rhode Island.

IV. And previously thereto and on or about the day of September, 1887, the said plaintiff and Abram Gf. Simmons, agreed together to live separate and apart, and the plaintiff was paid $5000 in consideration of said agreement.

The plaintiff then moved for an order : First, that paragraphs III. and IV. be struck out as redundant, and in the event of such application being denied, then, Second, for an order that the allegations of said paragraphs and each of them be made so definite and certain as to make the precise meaning and application thereof apparent, and Third,' for leave to reply or demur to the matters or any of them set forth in said two paragraphs or either of them.

This motion was made more than twenty days after answer served.

T. B. Clarkson, attorney for plaintiff and motion.

C. J. Patterson, attorney for defendant opposed.

It is entirely clear that neither paragraph III. nor paragraph IV. of the answer, as pleaded,.sets up a complete defense to the cause of action contained in the complaint.

Section 508 of the Code authorizes a partial defense to-be pleaded, but provides that (l it must be expressly stated to be a partial defense,” and if either or each paragraph was intended as a partial defense, the pleader has not complied with the provisions of said section.^[2] If it was intended in

p. 471

said paragraphs to plead facts which would go in. mitigation of damages, it should have been so stated.

Under these circumstances, I think the plaintiff is entitled to an order requiring the defendants to make the allegations of said paragraphs more definite and certain, so that it will clearly appear whether such paragraphs are intended as defenses or partial defenses or as matter in mitigation of damages.

The order may provide that if an amended answer is not served within ten days, such paragraphs shall be stricken out; also that if the matter contained in said paragraphs is pleaded as defenses or partial defenses, plaintiff may demur within twenty days.

As such defenses or partial defenses would not constitute counter-claims, and as a reply to new matter in an answer, not constituting a counter-claim, cannot be directed under section 516 of the Code, upon plaintiff’s application, the order will not authorize plaintiffs to reply.^[2]

The motion was not made within the twenty days prescribed by rule 22,^[3] and no costs will be granted to either party.

The order will be settled on notice.

* Section 516 provides that where an answer contains new matter, ■constituting a defense by way of avoidance, the court may, in its discretion, on the defendant’s application, direct the plaintiff to reply to the new matter. In that case, the reply, and the proceedings upon failure to reply, are subject to the same rules as in the case of a counter-claim.

† † Supreme Court Rule 22: Motions to strike out of any pleading, matter alleged to be irrelevant, redundant or scandalous, and motions to correct a pleading, on the ground of its being “ so indefinite or uncertain, that the precise meaning or application is not apparent,” must be noticed before demurring or answering the pleading, and within twenty days from the service thereof.

Footnotes

* Code Civ. Pro. § 508, is as follows: A partial defense may be set forth, as prescribed in the last section, but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action, therein set forth. Upon a demurrer thereto, the *471 question is, whether it is sufficient for that purpose. Matter tending only to mitigate or reduce damages, in an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, is a partial defense within the meaning of this section.