Blaut v. Blaut

41 Misc. 572, 85 N.Y.S. 146

• Court: New York Supreme Court
• Decided: November 15, 1903
• Status: Published

Opinion

Clarke, J.

La the first nine paragraphs of the answer the defendant specifically admits or denies the several allegations of the complaint; then follow four separate defenses and a counterclaim. Each of these defenses and the counterclaim begins with a recital, that the defendant “ reiterates all the admissions and denials contained in paragraphs I to IX of this answer inclusive and ” alleges •* * * . Motion is made to strike out the words in quotation. It is well settled# as contended by the defendant, that an affirmative defense or a counterclaim must be treated as a separate plea, and that, upon demurrer thereto, defendant is not entitled to the benefit of denials made elsewhere in the answer unless incorporated in the separate plea. Douglass v. Phenix Ins. Co., 138 N. Y. 208; Boyd v. McDonald, 12 N. Y. Supp. 356; Roldan v. Power, 14 Misc. Rep. 480. Moreover, “ It is not essential that a separate count- in an answer setting forth a counterclaim should contain in itself all the allegations requisite to a perfect counterclaim; it may refer to other parts of the answer, or to the complaint, and the matters thus referred to are to be considered a part of the count as if written at length therein.” Cragin v. Lovell, 88 N. Y. 258. But the defendant will not be permitted to incorporate by reference and plead irrelevant and redundant matter and the same may be stricken out upon the motion of a person aggrieved thereby. Code Civ. Pro., § 545. In this case the reiterated recitals are irrelevant and redundant. The denials can be proven under the first nine paragraphs of the complaint and their repetition does not strengthen the plaintiff’s pleading. They are not a necessary or proper part of the separate defenses. The very theory of an affirmative defense is that without denial of the allegations of the complaint the defendant can defeat the plaintiff by new matter pleaded. Besides, the plaintiff is aggrieved by the presence of these denials. A defense which contains a general denial is not demurrable, even though the other matter pleaded does not constitute a defense. Uggla v. Brokaw, 77 App. Div. 310; Flechter v. Jones, 64 Hun, 274. And, therefore, as stated in State of South Dakota v. McChesney, 87 Hun, 293: “ By permitting a general or specific denial to be joined with, an affirmative defense a plaintiff would-be effectually deprived of the right to demur to the new matter pleaded as affirmative defense.” Code Civ. Pro.,.§ 494. It has been repeatedly held that denials reiterated in affirmative defenses will, upon motion made, be stricken out. Stieffel v. Tolhurst, 55 App. Div. 542; Waltham Mfg. Co. v. Brady, 67 id. 102; White v. Koster, 89 Hun, 483; Burkert v. Bennett, 35 Misc. Rep. 318; Zacharias v. French, 10 id. 202. While a counterclaim, unlike an affirmative defense, does not necessarily admit the allegations of the complaint and seek to avoid the same, yet the plaintiff has the same right to test the sufficiency or propriety of a counterclaim by demurrer as he has to test an affirmative defense. Therefore, general denials, the presence of which would defeat plaintiff’s right to demur, will be stricken out when they are not a necessary .part of the counterclaim. In the case at bar the counterclaim as pleaded contains all requisite allegations without the recital of the general denials. The motion is granted, with ten dollars costs, defendant to serve an answer amended in conformity with order entered hereon, within five days after service of said order, plaintiff to reply or demur within ten days after service of amended answer.

Ordered accordingly.