Waite v. Sabel

Headnote

1. Pleadings—Numbering Paragraphs.

Separately numbering the paragraphs in a pleading intended to set up only a single cause of action or defense does not vitiate the pleading, if but a single cause of action or defense is in fact pleaded.

2. Replevin—Answer.

Plaintiff in replevin pleaded title and right of possession from “one” C. After general denial, defendant alleged the delivery by “one” O. of the goods in question to him (defendant) under an agreement. Held, that the answer was not objectionable as not “showing who this C. was.” .,

Appeal from special term, Yew York county.

Action by Oswald J. Waite against Joseph Sabel. Plaintiff demurred to defendant’s answer. Overruled, and plaintiff appeals.

Affirmed.

The following is the opinion of the court below (NASH, J.):

The several causes of action and defenses set up in a pleading should be distinguished by the phrase “for a further cause of action or defense,”, or something equivalent. Graves v. Blanchard, 4 How. Prac. 301. If stated in paragraphs separately numbered, it is sufficient. 4 N. Y. Law Bul. 31. But the statement of facts in separately numbered paragraphs, or alleged by mistake as separate causes of action, does not vitiate the pleading, if but a single cause of action or defense is in fact pleaded. Harris, J., in Hillman v. Hill-man, 14 How. Prac. 458, 459; Daniels, J., in Weeks v. Cornwell, 9 Civ. Proc. B. 28. The paragraphs of the answer here should be read together, and construed to contain but one defense,—a denial of the plaintiff’s right of possession, and an allegation of a special property and right of possession in the defendant. But the complaint and answer are examples of the vicious practice of separately numbering the paragraphs of a pleading intended to set up only a single cause of action or defense,—a practice which serves no useful purpose in pleading, and often tends to mislead or confuse. It is not required. The statement of the facts constituting each cause of action and each defense or counterclaim must be separately stated and numbered. No other numbering is required. Code, §§ 438, 507. The answer sets up a complete defense, being expressly within the terms of section 1720 of the Code.

The complaint alleges that the plaintiff derived his title and right of possession from “one” David B. Cassel, and, after the denial in the answer, it is alleged that “one” David B. Cassel delivered the goods to the defendant upon an agreement that the defendant should hold and sell the same to satisfy his general balance of account against Cassel, amounting to $2,300, and return the surplus to Cassel, and that at no time since the consignment have the goods been worth more than $2,300, etc. It is somewhat hypercritical for counsel to urge that there is no allegation in the answer “showing who this Cassel was,” when the plaintiff himself alleges the ownership of David B. Cassel as the source of his title. Demurrer overruled, with costs. Decision signed.