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Pittenger v. Southern Tier Masonic Relief Ass'n

15 A.D. 26 Court N.Y. App. Div. English

Delivered by Goodrich, P. J.:

Contents

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Margaret Pittenger, Appellant, v. Southern Tier Masonic Relief Association, Respondent.

Headnote

Motion to make an answer definite—a denial of all allegations, not already admitted, or denied, is good— an answer, not denying that a policy annexed to the complaint was executed, which sets up a different policy, construed.
A denial, in an answer, of each and every allegation .in the complaint contained “not hereinbefore or hereinafter admitted, denied or controverted,” which has already specifically admitted and denied certain allegations of the complaint, is sufficient.
.The complaint in an action upon a policy of insurance had annexed to it an alleged copy of the policy; the answer neither admitted nor denied specifically the allegation of the making of that policy, but set up as a further defense that a policy, of which a copy was annexed to the answer, was obtained by the false representations of the applicant for insurance. The policy annexed to the answer differed from the one annexed to the complaint, although both related to the same subject-matter.
Held, that the answer should be construed as it would if the pleader, in specifically referring to and answering the allegation of the complaint relative to the
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making of the policy, had alleged that the defendant made another contract different from that set out in the complaint, the effect of which practically would he a denial that it had made the contract set forth in the complaint; That a motion to compel the defendant to make its answer more definite and certain should he denied.
Appeal by the plaintiff, Margaret Pittenger, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of December, 1896, denying her motion to compel the defendant to make its answer more definite and certain.
Samuel I Frankenstein, for the appellant.
Charles A. Collin, for the respondent.

The action was brought upon a certificate or policy of insurance issued by the defendant, a copy of which is annexed to the complaint.

The answer specifically admits and denies certain allegations of the complaint and then adds, “ and the defendant denies each and every allegation in said complaint contained not hereinbefore or hereinafter admitted, denied or controverted.”

There was for some years great difference of judicial opinion whether it was good practice for an answer to admit or deny all other allegations of a complaint not thereinbefore admitted or denied, but this question has been set at rest by the case of Griffin v. L. I. R. R. Co. ( 101 N. Y. 348 ), which holds that such a denial is sufficient ; and this was the view of the effect of the decisions of our courts taken by Judge Blatchford in his decision in Burley v. German Am. Bank (5 Civ. Proc. Rep. 172).

Of the second paragraph of the complaint which contained the allegation of the making of the policy there was not, specifically, either affirmative admission or denial. The answer set up a further defense that a policy of which a copy was annexed was obtained by false representations of the applicant. This copy differs in matters more or less material from the one annexed to the complaint. The question arises whether this constitutes either an admission or denial of the allegation as to the making of the policy set out in the com

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plaint. In other words, whether the plaintiff can be compelled to resort to this part of the answer to ascertain whether or not the answer contains a denial of the making of a policy in the very language of the one annexed to the complaint.

We are of opinion that the answer stands precisely as it would if the pleader, in specifically referring to and answering the second paragraph, had alleged that the defendant made another contract differing from the one set out in the complaint, the effect of which practically would be a denial that he made the contract set forth by the plaintiff.

Both the contracts relate to the same subject-matter, and the plaintiff alleges that the policy which she - sets - out was the contract between the parties. The defendant, on the other hand, alleges that the policy which it sets out is the contract, thereby tendering a distinct issue. W e are not expressing any opinion as to whether the contracts import different liability, but if they do, the issue is whether the one or the other was the actual contract; and we do not see how the plaintiff can have any difficulty or be exposed to any danger in knowing precisely what the defendant claims.

It will be observed that the answer sets up a defense and not a counterclaim. The allegations of a counterclaim must contain all that is essential to constitute a complete cause of action, and it is for the reason that it must be in such form that a reply can be interposed to each of the allegations of the counterclaim. This dissociates its allegations from any other defenses of the answer, but it does not follow, because a defense distinctly and separately states new facts, that in that case its allegations are to be dissociated from the other parts of the answer.

The order should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

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