Burkert v. Bennett

New York Supreme Court

Burkert v. Bennett

35 Misc. 318, 71 N.Y.S. 144

CourtNew York Supreme Court

DecidedJune 15, 1901

StatusPublished

Cited by7 cases

This text of 35 Misc. 318 (Burkert v. Bennett) 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

Burkert v. Bennett, 35 Misc. 318, 71 N.Y.S. 144 (N.Y. Super. Ct. 1901).

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Opinion

Gaynor, J.

It would be difficult to draw a more illiterate

and unscientific answer; but the plaintiff has mistaken the remedy against most of it. The four so-called “ defences ” cannot be struck out for insufficiency. The remedy is demurrer. The introduction to each one, however, in these words, viz., “ and repeating the allegations and denials hereinbefore set forth as completely as if herein fully set forth ”, must be struck out as irrelevant and redundant. A “ defence ” must be complete in and of itself, and can consist only of “ new matter ” which constitutes a defence to the action, i. e., new matter which, taking the complaint to be true in all of its allegations, nevertheless defeats the action. “ Rew matter ” is matter outside of the issues raised or which could be raised by a denial. There can be no denial of the complaint or of any part of it in a “ defence ”. A “ denial ” and a “defence” are distinct and separate parts of an answer (Code Civ. Pro., § 500; Hinchcliffe v. Staten I. R. Co., 34 Misc. Rep. 49, and cases there cited; Durst v. Brooklyn H. R. Co., 33 Misc. Rep. 124).

The first denial in this answer is that “the defendants denies any knowledge or information sufficient to form a belief as to [320]*320the allegations contained in the paragraphs of the complaint numbered first, second and. third.” Apart from the grammatical feature (which I suppose we must shut our eyes to), this is no denial. It is not a denial that “ the defendants ” have any knowledge or information, and it is besides in gross, instead of being of each allegation as required by the Oode. It should be in so many words that the defendants deny that “ they ” have any knowledge or information of any of the allegations contained in the said paragraphs sufficient to form a belief thereof (Code Civ. Pro. § 500). But the plaintiff has no reason to complain of a so-called denial which is no denial.

The part of the motion that the defendants make the answer more definite and certain by. stating whether each defence is a partial or complete defence is denied. If a defence be not pleaded as a “ partial ” defence it is taken to be pleaded as a complete defence (Code Civ. Pro., §§ 507-8).

Let an order be entered in accordance with the foregoing, with $10 costs.

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Gaynor, J.

It would be difficult to draw a more illiterate

and unscientific answer; but the plaintiff has mistaken the remedy against most of it. The four so-called “ defences ” cannot be struck out for insufficiency. The remedy is demurrer. The introduction to each one, however, in these words, viz., “ and repeating the allegations and denials hereinbefore set forth as completely as if herein fully set forth ”, must be struck out as irrelevant and redundant. A “ defence ” must be complete in and of itself, and can consist only of “ new matter ” which constitutes a defence to the action, i. e., new matter which, taking the complaint to be true in all of its allegations, nevertheless defeats the action. “ Rew matter ” is matter outside of the issues raised or which could be raised by a denial. There can be no denial of the complaint or of any part of it in a “ defence ”. A “ denial ” and a “defence” are distinct and separate parts of an answer (Code Civ. Pro., § 500; Hinchcliffe v. Staten I. R. Co., 34 Misc. Rep. 49, and cases there cited; Durst v. Brooklyn H. R. Co., 33 Misc. Rep. 124).

The first denial in this answer is that “the defendants denies any knowledge or information sufficient to form a belief as to [320]*320the allegations contained in the paragraphs of the complaint numbered first, second and. third.” Apart from the grammatical feature (which I suppose we must shut our eyes to), this is no denial. It is not a denial that “ the defendants ” have any knowledge or information, and it is besides in gross, instead of being of each allegation as required by the Oode. It should be in so many words that the defendants deny that “ they ” have any knowledge or information of any of the allegations contained in the said paragraphs sufficient to form a belief thereof (Code Civ. Pro. § 500). But the plaintiff has no reason to complain of a so-called denial which is no denial.

The part of the motion that the defendants make the answer more definite and certain by. stating whether each defence is a partial or complete defence is denied. If a defence be not pleaded as a “ partial ” defence it is taken to be pleaded as a complete defence (Code Civ. Pro., §§ 507-8).

Let an order be entered in accordance with the foregoing, with $10 costs.

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