Flack v. O'Brien

An inspection of the proposed amended answer which the defendant asks leave to serve leads me to deny the motion. The said proposed answer starts out by pleading admissions and denials of certain allegations of the complaint as a “defense.” As strange as this may seem, it is not at all unusual. The science of pleading seems to he quite lost in this state. The distinction between a denial and a defense scarcely remains. The form of this proposed answer is as follows: “For a first defense: He admits the allegations contained in the paragraph marked ‘First’ in said complaint contained.” Then follow, as parts of this so-called defense, subdivisions numbered from “Second” to “Sixth,” both inclusive; each consisting mainly of general and specific denials and admissions of allegations of the complaint, as though admissions and denials are a defense, or can be called a defense by our educated profession. The former system of pleading never degenerated as the present system has done. It preserved its scientific character. The present system is scientific, too, and the perplexity and annoyance which the courts suffer from the form and verbiage of pleadings are not fairly attributable to it, but to conditions which may not be well referred to here. The Code of Civil Procedure (section 500) plainly prescribes that an answer must contain—First, a general or specific denial of each material allegation of the complaint controverted ; and, second, a statement of any “new matter” constituting a defense or counterclaim,—with leave to plead as many defenses, whether complete or partial, and as many counterclaims, as there may be, each to be separately stated and numbered (sections 507, 508). It would seem that nothing could be plainer than this. The answer is to deny each allegation of the complaint which is contro

It is true that decisions are to be found which have helped to unsettle and make abstruse the simple and scientific method of pleading prescribed by the Code, but they do not long survive as authority against the judgment of an educated bar. For instance, though a general denial is not a defense, and may not be called a “defense” at all, and, when reiterated in a statement of new matter constituting a defense, is mere surplusage, and goes for naught, it nevertheless seems to have been decided that a demurrer to new matter pleaded as a defense to an action for libel, on the ground that it was insufficient to constitute a defense, had to be overruled because the general denial, previously pleaded in due form, was found to be reiterated in such plea of new matter. Fletcher v. Jones, 64 Hun, 274 , 19 N. Y. Supp. 47 . The misunderstanding of another case (Baylis v. Stimson, 110 N. Y. 621 , 17 N. E. 144 ) has led to a very general departure from general denials, in so many words, of each and every allegation contained in the complaint, or in subdivisions of the complaint referred to by number, and to a new, cumbersome, and confusing form of denial, viz. reciting in haec verba the allegations of the complaint purporting to be denied. Such form of' denial is scarcely permissible, and very often results in negatives pregnant instead of denials, by reason of the conjunctives and disjunctives in the allegations thus denied. Stuber v. McEntee, 142 N. Y. 206 , 36 N. E. 878 . The said case, instead of introducing a kind of answer never before used, either under the old system or the new, only condemned denials of allegations by referring to them as embraced within certain folios of the complaint. In appeal books such folios are

The motion of the defendant is denied, with $10 costs, with leave to move again upon an answer drawn in accordance with the Code.