Grinnell v. Church

65 How. Pr. 399

• Court: New York Supreme Court
• Decided: July 15, 1883
• Status: Published

Opinion

Westebook, J.

This motion only presents questions upon the legal sufficiency of the answer, and as to those the affidavit for a postponement of the motion has no relevancy,

First. The denial contained in the answer, that the plaintiff is not the owner and holder of the bond and mortgage is bad, because it is a denial of no averment of the complaint. It therefore makes no issue for trial. If the facts averred give no cause of action, the defendant must demur; or by alleging and stating new facts making a defense, he can on the trial test the sufficiency of the complaint by motion. But he cannot, by a denial of an unaverred fact, make an issue.

Second. As the complaint alleges the making and delivery of the bond and mortgage by the defendant to the plaintiff, the second allegation of the answer of the defendant simply-charging that the plaintiff is not the real party in interest is bad, because, the answer by not denying admits such allegations of the complaint, and avers no new fact, which, if true, avoids the effect of the admission.

For these reasons the motion of the plaintiff must be granted, with ten dollars costs. As, however, the affidavit of the defendant shows that there may possibly be a defense, the order must provide that the defendant may, on the payment of ten dollars costs, in twenty days after the service of the order on this motion, serve an amended answer.