Fay v. Hauerwas — 57 N.Y.S. 155

Majority

p. 155

(26 Misc. Rep. 421.)

FAY v. HAUERWAS.

(Supreme Court, Special Term, Albany County.

February, 1899.)

Headnote

1. Pleading—Answer—Separating Mew Matter from Denials.

A defendant should be required to separate new matter from denials, since denials are not demurrable, and new matter is, under Code Civ. Proc. § 494.

2. Same—Stating Defenses Separately.

Numbering the separate paragraphs of the answer does not satisfy Code Civ. Proc. § 507, requiring defenses to be stated and numbered separately.

Action by Edward F. Fay against Anton Hauerwas. Motion to require defendant to separately state and number his defenses.

Granted.

Harold D. Alexander, for the motion.

Sidney A. Hungerford, opposed

A demurrer will not lie. to either a specific or general denial; and if° a defendant is allowed, in the same defense, to join denials with new matter alleged as a defense, he can by that course nullify the provisions of section 494 of the Code of Civil Procedure, which allows the plaintiff to demur to a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law on the face thereof. The defendant should be required, therefore, to separate new matter from denials. He should also separately state and number his defenses, as required by section 507 of the Code of Civil Procedure. I do not think this requirement is complied with by simply numbering the separate paragraphs of the answer..

■ I think, also, that the allegation mentioned in the order to show cause with respect to the trial and expulsion of the plaintiff from the society, referred to in the answer, is irrelevant, as the answer now stands, and should be stricken out.

The motion, to the extent above indicated, is granted, with $10 costs, with leave to the defendant to amend his answer generally within 20 days after service of notice of entry of order, upon the payment of such costs.

Ordered accordingly.