Lynch v. Walsh — 9 N.Y. St. Rep. 520

Majority

p. 520

James Lynch, Resp’t, v. Henry J. Walsh, App’lt.

(City Court of New York, General Term,

Filed April, 1887.)

Headnote

1. Pleading—When denial in answer irrelevant.

A denial that the defendant is indebted to the plaintiff in an action nr the sum claimed in the first cause of action in the complaint is irrelevant, and where it forms a part of an entire defense should be stricken out as-such, and cannot be reached by demurrer.

2. Same—Discretion of court as to pleadings.

Where an answer in an action for rent admitted that the defendant hired’ the premises and occupied the same for some time but denied having hired and occupied the same for the time mentioned in the complaint, the discretion of the court is properly exercised in requiring the defendant to-make more definite and certain the expression “some time;” and in case he fails to do so, the court has jurisdiction to make an order precluding the defendant from giving evidence upon the trial “ of concerning, contradicting or tending to contradict” the allegation of the complaint as to the time he occupied the premises therein described.

Appeal from order striking out matter from defendant’s answer as irrevelant, and requiring him to make such answer more definite and certain, and from order .precluding the defendant from giving evidence of the defense he-was required to make more definite and certain on account of his failure so to do.

The first cause of action set out in the complaint was for rent of certain premises at No. 80 West Broadway, in the city of New York, which, it alleged, the defendant, prior to September 1, 1882, entered into the occupany of and continued to occupy, hold, use and enjoy up to and including the month of March, 1885.

The first paragraph of the defendant’s answer was as. follows:

“First. He denies being indebted to the plaintiff in the sum of $240, claimed in the first paragraph or cause of action of the complaint. He admits having hired the-premises for six dollars per month, and having occupied the same for some time; but denies having hired and occupied the said premises for the'time in the complaint mentioned; and, except as admitted or denied, denies the other allegations of said first cause of action.”

In the sixth paragraph of the answer, che defendant denied each and every other allegation in the complaint except those before admitted or denied in the answer. On November 23, the order was made upon motion after argument, by the special term of the city court of New York, striking out the words “he denies being indebted to the plaintiff in the sum of $240, claimed in the paragraph or cause of action in the complaint,” as irrelevant and redundant, and requiring the defendant to make his answer more-definite and certain, by stating the time he occupied the?

p. 521

premises described in the first cause of action contained in the complaint. The defendant failed to make his answer more definite and certain, and, on December 29, 1886, an order was entered precluding the defendant from giving-evidence upon the trial “of concerning, contradicting or tending to contradict ” the allegation of the complaint that the defendant occupied the premises therein described prior to September 1, 1882, to March 31, 1885.

Thomas Brennan, for def’t and app’lt; Henry Huffman■ Browne, for pl’ff and resp’t.

The order dated December 29, 1886, is conditional only. The court below had the jurisdiction to make such an order upon the refusal or failure of defendant to comply with its former order; and I am inclined to the opinion, therefore, that in the present case, unless the first order should be found erroneous, both orders should be-sustained.

The matter objected to as irrelevant, was properly stricken out as such, for the reason that it stated no issuable fact in an issuable form; the same being alleged as an entire defense, could not be reached by demurrer, and the denial contained in the sixth clause of the answer afforded ample protection to the defendant.

It is quite clear that the discretion of the court below was properly exercised in requiring the defendant to make more definite the expression “sometime,” referring to his-admission of occupancy of the premises, for the rent of which the plaintiff seeks to recover.

The order should be affirmed, with costs.

Hall, J., concurs.