Sanford v. Rhoads — 80 N.Y.S. 404

Majority

p. 404

(39 Misc. Rep. 548.)

SANFORD v. RHOADS et al.

(Supreme Court, Special Term, Kings County.'

January, 1903.)

Headnote

1. Pleading — Defenses—Admission.

Admissions in defenses in an answer will be stricken out as irrelevant.

Action by Robert Sanford against Benjamin T. Rhoads, Jr., and others'. Motion to strike out portions of the answer.

Granted.

Edward S. Clinch, for plaintiff.

Samuel B. Thomas, for defendants.

The first paragraph or subdivision of the answer consists of admissions, as though admissions were a necessary part •of or ought to be in an answer; and the second paragraph, of denials.

p. 405

Then come five defences, each being introduced by an allegation that the defendants “re-allege all the allegations contained in the first and second paragraphs of this answer, to be of and to have the same force and effect as though the same were herein again set forth in full and at large.”

The motion to strike this matter out of each defence as irrelevant and redundant under section 545 of the Code of Civil Procedure must be granted. It is useless to again point out the reason why denials cannot be part of a “defence.” A “defence” can only consist of matter which cannot be proved under a denial, and which, taking every allegation of the complaint to be true, nevertheless defeats the action. Any other matter in it is irrelevant there. A “defence” is" “confession and avoidance,” i. e., it is on the basis that confessing the complaint to be true, the matter pleaded as a defence nevertheless avoids or defeats it. The phrase has recently been turned about and put in disjunctive form, being changed to read “avoidance or confession” (Staten Island M. R. Co. v. Hinchliffe, 170 N. Y. 48 ], 63 N. E. 545 ), but I suppose nevertheless that it has lost neither its form nor its life in our educated profession.

Motion granted, with $10 costs.