Howd v. Cole

26 N.Y.S. 431, 74 Hun 121, 81 N.Y. Sup. Ct. 121, 55 N.Y. St. Rep. 876

• Court: New York Supreme Court
• Decided: December 6, 1893
• Status: Published

Opinion

PER CURIAM.

The complaint states a cause of action upon a bond and mortgage, claiming due thereon a principal sum of $3,000, and interest from November 1, 1884. Defendants denied that the interest was due from November 1, 1884, and alleged payment of the same to November 1, 1891. In the prayer for relief, they demand that, in the computation of the amount due on the bond and mortgage, the interest may be computed from November 1, 1891, instead of November 1,1884, as claimed in the complaint. The plaintiff demurred to the allegations in the answer setting up payment of interest as aforesaid, on the ground that such answer is not therein alleged to be a “partial defense,” as required by section 508, Code Civil Proc. It is plain, however, that the payment is alleged by defendants as a partial defense, although they do not characterize it by using those words. We think, in such a case as this, where an answer alleges plainly a partial defense, it is unnecessary for the pleader to call it such. Such an answer characterizes itself, being necessarily a partial defense, especially with such a prayer for relief as was interposed in the answer in question. A reasonable construction of section 508, Civil Code, does not, we think, require a pleader, in every case, to use the words “partial defense,” where the answer sets up a defense that clearly appears on its face to be- such. Section 507 of the Civil Code provides that a defense, “unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer.” Yet it is held in Crasto v. White, 52 Hun, 473, 5 N. Y. Supp. 718, that where a separaté defense contains denials and allegations which can by no possibility refer to any other than a particular cause of action in the complaint, the defense refers, within the meaning of section 507, supra, to that cause of action. So, here, where it is entirely clear that the portion of the answer demurred to was intended to be set up as a partial defense, and where the relief claimed is only consistent with such, the answer should be deemed to sufficiently show or state that it is interposed as a partial defense. We have examined the cases cited by appellant, but do not regard them as sustaining his contention. An answer alleging a payment of a certain sum, less than the amount claimed in the complaint, characterizes itself as a partial defense, and hence, in effect, states that it is such. The judgment should be affirmed, with costs. All concur.