Hopkins v. Everett

6 How. Pr. 159

• Court: New York Supreme Court
• Decided: September 15, 1850
• Status: Published

Opinion

Barculo, Justice.

The counsel for the defendant is mistaken in supposing that a demurrer will not lie against a denial in an answer as well as to new matter. The word “same,” in section 153 of the Code, refers to the word “ answer,” and not to “ new matter.”

I think, also, that the answer is insufficient. The complaint alleges that defendant “ assaulted the plaintiff, and seized him by his collar and shook him violently.” The answer “ denies that he did assault the said plaintiff, and seize him by his collar, and shook him violently.” The defendant has grouped three of the charges and denied them under oath in such a manner that if he

should he guilty of two and not guilty of any one, his answer would not be literally untrue. This is not good pleading within the Code. The object of the special pleading, and the oath adopted by the code, is to require the defendant to admit so much of the charge as he can not conscientiously deny, and thus narrow the issues to those points which are really in controversy.

The denial in this case should have been of each charge disjunctively, if the defendant intended to put the whole of them in issue.

Judgment for plaintiff on demurrer, with leave to defendant to amend on the usual terms.