Majority
p. 285WILLIAM S. POWERS, Respondent, v. THE ROME, WATERTOWN and OGDENSBURGH RAILROAD COMPANY, Appellant.
Headnote
Answer— “ora information and belief" — what constitutes a denial— Oode, sec. 149.This action was brought by the plaintiff to recover damages for injuries sustained while traveling in defendant’s cars. The defendant in its answer, after making certain specific admissions, “ upon its information and belief, says that said plaintiff was not by reason of said collision at all bruised or injured in the back and thigh or elsewhere, and that he has not by reason of said alleged injury ever since or at any time been sick, sore and lame,” etc. Held, that the answer did not contain a denial of the allegation of the complaint as required by section 149 of the Oode, and that judgment was properly directed for the plaintiff on the ground that it was frivolous. A denial “ upon information and belief ” is not a good traverse.
Appeal from an order made at chambers, directing a judgment for the plaintiff on the answer, as frivolous. The action was brought to recover damages for an injury to the plaintiff, received from a collision while riding on defendant’s railroad. The material portion of the answer is set forth in the opinion.
Edmund W. Wynn, for the appellant.
Edward G. James, for the respondent.
As no judgment has been entered, the appeal is properly brought from the order.[2] The defendant, after making certain specific admissions in the answer, “ upon its information and belief, says that said plaintiff was not by reason of said collision or at all bruised or injured in the back and thigh or elsewhere, and that he has not by reason of said alleged injuries ever since or for any time been sick, sore and lame and unable to attend to his ordinary business, and that said plaintiff has not been at the expense of medical treatment and medicines in consequence thereof, and that said plaintiff has not by reason of the premises suffered damages,” etc. Is this a good
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denial under the Code ? Section 149 requires the answer to contain “ a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” Section 168 provides, that “ every material allegation of the complaint, not controverted by the answer, as prescribed in section 149 * * shall, for the purposes of the action, be taken as true.” Every denial must therefore conform to the provisions of section 149, or it must be construed as an admission. Such is the imperative mandate of the statute. Now, section 149 prescribes only three modes of traversing a complaint: 1. A general direct denial of the whole, or a certain portion thereof; 2. A specific direct denial of particular allegations which are identified; and, 3. A direct denial of any knowledge or information sufficient to form a belief of the whole, or some specified portion of the complaint. Whichever mode is adopted, must be a direct, positive and explicit denial; a negation, not an allegation. The purpose of the provision was to obtain a categorical issue, and to prevent raising issues by implication or inference, or by a comparison of counter-allegations and contradictory statements in the pleadings. It has accordingly been held that a denial upon information and belief, is not a good traverse, and admits the allegations in the complaint.[2] Merely making a counter-statement, or giving a different version of the matter from that contained in the complaint, without in terms denying the allegations, is insufficient.[3] So an allegation in an answer, that' the defendant “ says that he denies,” etc., has been repeatedly condemned in the General Term.[4] The last cases cited are directly in point against the validity of the denials in the answer now before us. This objection cannot be obviated by a “liberal construction ” of the allegations under section 159, as suggested in the case of Chapman v. Chapman.[5] It is not a question of construction, but of conformity in regard to method or form. The statute has prescribed particular modes or forms of denial, and the courts have no
* Therasson v. McSpedon, 2 Hilt., 1.
† † Wood v. Whiting, 21 Barb., 190 , 198; West v. American Exchange Bank, 44 id., 176, 179.
‡ ‡ Arthur v. Brooks, 14 Barb., 538 ; Blake v. Eldred, 18 How., 240 .
§ § 34 How., 281 .
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right to hold that some other mode or form will answer the same purpose. The rule, requiring a liberal construction to be given to the allegations of a pleading, does not dispense with the necessity, on the part of the pleader, of conforming his pleading, in all essential particulars, to the provisions of the statute. There must be a limit even to liberality in practice and pleading. Where parties go to the circuit for trial upon informal and indefinite pleadings, thereby waiving objections of this character, very great liberality should be exercised in construing and amending the pleadings to conform to the proofs, but where the distinct objection is taken, in advance and in proper form, that the pleading does not conform to the rules of law, it must be entertained and the rules enforced. In this case the pleader has declined an opportunity afforded him below to amend, but insists that his pleading is strictly in accordance with the requirements of the statute. In this, he is manifestly in error. The order must be affirmed with ten dollars costs.
Present—Bocees, P. J., Countryman and Landon, JJ.
Order affirmed, with ten dollars costs.
Footnotes
- * Lee v. Ainslee, 1 Hilt., 277; Witherhead v. Allen, 28 Barb., 661 .