De Witt v. Brill

6 Misc. 44, 25 N.Y.S. 1001, 56 N.Y. St. Rep. 616

• Court: City of New York Municipal Court
• Decided: November 15, 1893
• Status: Published

Opinion

Van Wyck, J.

The answer by specific denials puts at issue-every material allegation of the complaint, except the copartnership of defendants, and then follows the fourth paragraph of the answer as follows: “ For a separate and distinct offense, and repeating the previous allegations” (which are the specific denials), and then goes on to allege a defense consisting of new matter. The plaintiff moved to strike from this alleged separate and distinct defense the words “ and repeating the previous allegations,” as redundant, plaintiffs’ contention being that a demurrer will not lie to a part of an entire defense in an answer, and that while the previous specific denials are allowed to stand in the fourth paragraph, which sets forth an alleged entire defense consisting of new matter, he is precluded from availing himself of the provisions of section 494 of the Code, which allows demurrer to a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law upon the face thereof. And certainly demurrer will not lie to either a specific or general denial, and if a defendant is allowed to repeat his specific or general denials in each of his entire separate alleged defenses, consisting of new matter, then he can, at will, nullify the express provisions of section 494; but, of course, he has no right to do so. The motion should have been granted and not denied. The order is reversed, with ten dollars costs, and motion to strike from the fourth paragraph of the answer the words “ and repeating the previous allegations,” granted, with ten dollars costs, with leave to plaintiffs to demur to the alleged defense in the fourth paragraph, consisting of new matter, within six days after entry of order hereon.

McCarthy, J., concurs.

Ordered accordingly.