Britt v. Holzman

New York Supreme Court

Britt v. Holzman

89 Misc. 557, 153 N.Y.S. 685

DecidedMarch 15, 1915

StatusPublished

This text of 89 Misc. 557 (Britt v. Holzman) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Britt v. Holzman, 89 Misc. 557, 153 N.Y.S. 685 (N.Y. Super. Ct. 1915).

Pincite

Opinion

Cohalan, J.

The plaintiffs move for an .order requiring the defendants to make their answer more definite and certain. In paragraph second of the answer the defendants deny each and every allegation contained in the eighteenth and twentieth paragraphs of the complaint, “ except so much thereof as shall be thereafter specifically admitted.” In a separate defense set up in the answer, by implication only are the allegations of the complaint admitted. It is needless to say that the denial should be clear and specific such as at once to apprise the parties and the court of the matter controverted. This form of denial was condemned in the case of Thompson v. Wittkop, 184 N. Y. 117. Moreover, portions of the denials contained in the answer relate to matters of which the defendants must have personal knowledge or which are matters of public record capable of ascertainment upon ordinary inquiry. If the matters of which the defendants must have personal knowledge are mixed with denials of allegations which the defendants cannot deny, it is proper practice .to call the pleader’s attention to this fact in order that an opportunity may be given him to amend his pleading by omitting the objectionable portions thereof. Kirschbaum v. Eschmann, 205 N. Y. 127; Dahlstrom v. Gemunder, 198 id. 449. It is set forth in the third paragraph of the complaint that the plaintiff recovered a judgment in the City Court of the city of New York against the defendant Joseph F. Keyrouse; that a transcript of the judgment was [559]*559filed in the office of the clerk of New York county, and that an execution thereof was issued to the sheriff of the county and by him returned unsatisfied. There are other allegations of a similar nature, all of which are of public record and capable of ascertainment by the defendants. The motion is granted, with leave to the defendants to serve the amended answer within twenty days from the date of the entry of the order filed herein.

Ordered accordingly.

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Cohalan, J.

The plaintiffs move for an .order requiring the defendants to make their answer more definite and certain. In paragraph second of the answer the defendants deny each and every allegation contained in the eighteenth and twentieth paragraphs of the complaint, “ except so much thereof as shall be thereafter specifically admitted.” In a separate defense set up in the answer, by implication only are the allegations of the complaint admitted. It is needless to say that the denial should be clear and specific such as at once to apprise the parties and the court of the matter controverted. This form of denial was condemned in the case of Thompson v. Wittkop, 184 N. Y. 117. Moreover, portions of the denials contained in the answer relate to matters of which the defendants must have personal knowledge or which are matters of public record capable of ascertainment upon ordinary inquiry. If the matters of which the defendants must have personal knowledge are mixed with denials of allegations which the defendants cannot deny, it is proper practice .to call the pleader’s attention to this fact in order that an opportunity may be given him to amend his pleading by omitting the objectionable portions thereof. Kirschbaum v. Eschmann, 205 N. Y. 127; Dahlstrom v. Gemunder, 198 id. 449. It is set forth in the third paragraph of the complaint that the plaintiff recovered a judgment in the City Court of the city of New York against the defendant Joseph F. Keyrouse; that a transcript of the judgment was [559]*559filed in the office of the clerk of New York county, and that an execution thereof was issued to the sheriff of the county and by him returned unsatisfied. There are other allegations of a similar nature, all of which are of public record and capable of ascertainment by the defendants. The motion is granted, with leave to the defendants to serve the amended answer within twenty days from the date of the entry of the order filed herein.

Ordered accordingly.

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Bluebook (online)

89 Misc. 557, 153 N.Y.S. 685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/britt-v-holzman-nysupct-1915.

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