LEARNED HAND, District Judge.
[1-3] It is settled in New York that, when a party incorporates special traverses along with matter in confession and avoidance, the traverses cannot be disregarded. Uggla v. Brokaw, 77 App. Div. 310, 79 N. Y. Supp. 244. It necessarily results, if there be any traverses of material allegations incorporated in the plea, that the opposite party loses his right to test the sufficiency of the plea, unless he may strike out the traverses. This the courts have recognized as a genuine embarrassment to the opposite paily, and have therefore entertained such motions (Stieffel v. Tolhurst, 55 App. Div. 532, 67 N. Y. Supp. 274), at least when they are iterations of similar traverses elsewhere. A difficulty faces a pleader, however, when the opposite party has. already incorporated a traverse of a possible plea in avoidance in his own pleading — “leapt before he came to the stile.” If he leaves unanswered such an assertion, though it is not really an allegation at all, he hazards its being taken as such; indeed, he might strike it out, for it has no proper place in the first .pleading. However, being placed in this position through the fault of the first pleader, it surely serves to convenience if he be allowed to couple a traverse of this anticipatory traverse along with the plea which the anticipatory traverse has denied. Pullen v. Seaboard Trading Co., 165 App. Div. 117, 150 N. Y. Supp. 719. The result is indeed amorphous, and racks the soul of a conscientious pleader, because there is strictly no place for a traverse in a plea at law at all, at least where the original pleading is not alternative or double. Courts do not, however, value so much as formerly their logical integrity, and, if the result be convenient, no harm is done.
[413]*413[4-6] To apply these principles to the case at bar, the second traverse ought to be allowed to stand, because, though anomalous, it avoids the result of a plea inconsistent in substance, though not in form, with the counterclaim. The first and third traverses are not necessary to the validity of the plea, which should stand upon its own merits. The third is only an iteration of an earlier traverse in the answer; the first may be incorporated by amendment in the proper place, if the plaintiff desires. Strictly speaking, both these traverses raise immaterial issues, since the allegations are conclusions of law and would be disregarded in any case. Formally, however, they are bad where they are, and should be stricken out, as they may be. The fourth traverse is also immaterial, since the action is in contract, and requires no allegation of damages to withstand demurrer. Tts presence in the plea would therefore not prejudice the defendant’s right to demur. However, like the first and third, it has no proper place in a plea, since it is not necessary to the validity of the plea, and it may therefore be stricken out, like them.
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