De Ajuria v. Berwind — 127 A.D. 528

Majority

p. 528

Gregorio De Ajuria, Respondent, v. Herminie T. Berwind, Appellant.

First Department,

July 8, 1908.

Headnote

Pleading — striking out irrelevant matter — qualified denial — defense of former adjudication.

Where an answer in an action for. labor and services in painting a portrait denies each and every allegation of the complaint except that the defendant admits the delivery of a portrait painted under a special contract, but denies that it was a good and true likeness for which reason it was returned, the qualified denial should not be stricken out, even though as a general rule a qualified denial may be proved under, a general denial. This because the defendant should not be required to deny matters not open to denial.

Allegations in an answer which state nothing but evidence and' add nothing to the defenses and are clearly irrelevant will be stricken out.

The defense of prior adjudication must be set up as a separate defense Connected by proper allegations with the subject-matter of the action; it cannot be alleged as a part of another defense.

p. 529

Appeal by the defendant, Herminie T. Berwind, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of April, 1908.

George C. Austin, for the appellant.

Clarence Blair Mitchell, for the respondent.

The defendant appeals from an order striking out portions of"the answer. The action is for labor and services, alleged to have been performed at defendant’s request, in painting a miniature portrait, which services are said to have been reasonably worth and for which the defendant agreed to pay the sum of $800. The answer is by no means a model of pleading. For a first defense it sets up a qualified denial by denying each and every allegation, except that defendant admits the delivery of a portrait, painted under a special contract, but denies that it was a good, true and fair likeness, and alleges that for that reason it was returned to plaintiff. The qualification of the denial was stricken out, While it is undoubtedly true that a qualified denial may be proven Under a general denial, we do not consider that the defendant should be restricted to a general denial which will, in form at least, place her in the position of denying matters which are not open to denial. We think, therefore, that so much of the order- appealed from as Strikes out the qualified denial in the first separate defense was erroneous.

Paragraphs 4 and 5 of the second separate defense contain nothing more than allegations of evidence, and add nothing to the separate defense contained in paragraphs 2 and 3. Paragraph 1 is clearly irrelevant and was also properly stricken out. By paragraph ■ 6 the defendant has apparently undertaken to. set up the defense of a prior adjudication. It has no relation to and no proper place in the second separate defense, and if defendant desires to rely upon it she should set it up as a separate defense connecting it by proper allegations with the subject-matter of the present action;

The order appealed from will, therefore, be modified- by striking

p. 530

out the clause numbered one, and by adding to clause numbered three the words “ connecting it by proper allegations, with the controversy which constitutes the subject-matter of the present action/’ and-as so modified will be affirmed, without costs.

■ Ingraham, McLaughlin, Laughlin and Houghton, ' JJ., concurred. .

•Order modified as directed in opinion, and as modified affirmed, without costs.