Lesser v. Keller — 29 N.Y.S. 829

Majority

p. 829

LESSER v. KELLER.

(Supreme Court, Special Term, Kings County.

May, 1894.)

Headnote

Executors and Administrators—Actions—Pleading.

In an action against an administrator for money loaned decedent, the answer does not state a defense where it alleges that plaintiff did not present his claim within the time limited by the notice to creditors, and that the payment of the claim was not unreasonably resisted or neglected, but does, not allege a distribution of the assets of the estate.

Action hy Maximus A. Lesser against Ida Keller, as administratrix of Raphael Keller, deceased, to recover a sum of money alleged to have heen loaned hy plaintiff to defendant’s intestate shortly before the latter’s demise, in December, 1889, with the costs, of suit. Plaintiff demurs to part of the answer.

Sustained.

The answer, after denying any knowledge or information sufficient to form a belief concerning the allegations of the complaint, continues as follows: “Further answering, and for a defense, this defendant alleges that subsequent to the appointment and qualification of this defendant as administratrix of the estate and effects of Raphael Keller, deceased, and on the 2d day of October, 1891, an order was duly made by the surrogate of the county of New York, pursuant to statute in such case made and provided, directing this defendant, as such administratrix, to publish a notice requiring creditors to present their claims to her at the office of Blumenstiel & Hirsch, No. 329 Broadway, New York City, on or before the 15th day of April, 1892, and further directing that such notice should be published once in each week for six months in the New York Law Journal and Uptown Press; that such notice was duly published in the New York Law Journal and in the Uptown Press, as required by said order; and this defendant alleges that no demand or claim was presented to her by the plaintiff within the time limited by such notice so published; and that payment of said claim was not unreasonably resisted, or neglected; and that this defendant did not refuse to refer the claim of this plaintiff as prescribed by law.” To this alleged “further defense,” plaintiff demurs, on the ground that it is insufficient in law upon the face thereof.

M. A. Lesser, in pro. per.

A prayer for relief, or a part thereof, is not subject to traverse in pleading. In any event, it would be available and could be expressly pleaded as a “partial” defense only (under section 508 of the Code), and, being not so pleaded, it must be construed as an entire defense (under section 507). As such, it is wholly untenable. Of. last clause of section 2718, as amended 1893; also section 1824 of the Code. Finally, it is frivolous in failing to allege any distribution of assets, whence non constat that defendant was prejudiced by plaintiff’s failure to file proof of claim, etc.

Blumenstiel & Hirsch, for defendant.

Respondent contends that the part of the answer demurred to is valid as a good defense or, at all events, a proper and necessary defense (by virtue of section 1836 of the Code), to obviate costs being awarded against the defendant administratrix, as prayed for in the complaint.

The facts pleaded in subdivision as a defense are not a defense. I reluctantly sustain the demurrer. At the same time the tendency to loose and unscientific pleading is leading to bad results, and ought to be checked.