Fay v. Hauerwas

26 Misc. 421, 57 N.Y.S. 155

• Court: New York Supreme Court
• Decided: February 15, 1899
• Status: Published

Opinion

Chester, J.

A demurrer will not lie to either a specific or general denial, and if a defendant is allowed in the same defense to join denials with new matter alleged as a defense he can by that course nullify the provisions of section 494 of the Code of Civil Procedure, which allows the plaintiff to demur to a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law on the face thereof. The defendant should be required, therefore, to separate new matter from denials.

He should also separately state and number his defenses as required by section 507 of the Code of Civil Procedure. I do not think this requirement is complied with by simply numbering the separate paragraphs of the answer.

I think, also, that the allegation mentioned in the order to show cause with respect to the trial and expulsion of the plaintiff from the society referred to in the answer, is irrelevant as the answer now stands and should he stricken out.

The motion to the extent above indicated is granted, with $10 costs, with leave to the defendant to amend his answer generally within twenty days after service of notice of entry of order, upon the payment of such costs.

Ordered accordingly.