Taylor v. Richards — 22 N.Y. Super. Ct. 679

Majority

p. 679

Alexander Taylor, Plaintiff, v. Augustus C. Richards et al., Defendants.

Headnote

1. The objection that the allegations of an answér are hypothetical, is not available on demurrer.

2. A defendant in his answer, in order to avoid the cause of action alleged, need not confess it; he may aver that if any such contract as alleged was made, it was made jointly with other persons.

3. An answer setting up the non-joinder of third persons, averred to be jointly liable with the deféndants, sufficiently alleges that they are still living, if it alleges that they reside at a place named.

Special Term,

June, 1863.

Before Monell, J.

Demurrer to answer.

This action was brought to recover for the use and occupation of apartments in the City Assembly Rooms, in this city. The complaint also alleged a hiring by the defendants.

The defendant, Richards, in his answer alleged, that there was a defect of parties; that several persons, (naming them,) “all of whom reside in the City of Flew York,” ought to be joined as defendants. The answer then proceeded to allege that “if” the defendants used and occupied the. premises, or “if” they hired the same, or “if” they promised to pay the sum in that behalf mentioned in the complaint, it was jointly with said persons named.

To this answer the plaintiffs demurred, alleging that it did not constitute a defense to the action.

The first objection to the answer is that it is hypothetical; that the defendant seeks to avail himself

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of a defect of parties only in the event of the plaintiff’s proving a hiring, or a promise by the defendant.

The first answer to this objection is, that it is not available upon demurrer. (Ketcham v. Zerega, 1 E. D. Smith, 553; Wies v. Fanning, 9 How. Pr., 543 .)

The second answer is, that pleading a hypothesis, as it is pleaded in this case, is not objectionable. Pleas totally inconsistent with each other are not a novelty. The “general issue,” (which denied the making,) and payment or infancy, release, accord and satisfaction, statute of limitations, either of which admitted the making, and went only in avoidance, were always allowed—indeed, were necessary to enable the defendant to set up either of those two defenses. The Code, instead of abridging these characteristic pleas, has enlarged the right to plead as many defenses as the defendant may have. (Code, § 150, sub. 2.) Hence, in slander he may deny the uttering and justify. (Butler v. Wentworth, 9 How. Pr., 282 .) It is, I believe, the constant and uniform practice to allow a defendant, with a general denial, to set up any new matter in avoidance of the plaintiff’s cause of action, and which, by admitting the cause of action, is inconsistent with the general denial.

But matter in avoidance must be specially set up by answer. (Wies v. Fanning, 9 How. Pr., 543 ; McKyring v. Bull, 16 N. Y. R., 297.)

A defendant in order to avoid need not confess. He has a right to put the plaintiff to Ms proof, and is not to be shut out of Ms defense because the proof is strong enough to charge Mm. He has the right to say,. I deny your alleged cause of action against me, but if you shall succeed in proving it, still I am not liable, because, &c. TMs view is in accordance with Ketcham v. Zerega and Wies v. Fanning, sivpra.

The remaining objection is to the substance of the new matter set up in the answer.

The answer does not, in terms, aver that the persons named as being justly liable with the defendants, are liv

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ing persons; but the allegation that they “all reside in the City of Hew York,” it seems to me, is a sufficient averment that they are living persons.

The Code, in abolishing form, and requiring substance to be stated in a pleading, has left the pleader to use such language, expressive of his meaning, as he may deem proper. In this case “reside” is equivalent to and synonymous with “live” or “living,” the use of either of which words would be sufficient.

I must, therefore, hold the averment to be sufficient.

' Judgment for the defendants upon the demurrer, with costs.