Levine v. Behn

257 A.D. 156, 12 N.Y.S.2d 190, 1939 N.Y. App. Div. LEXIS 7695

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 1939
• Status: Published

Opinions

Per Curiam.

The fifth paragraph of rule 113 of the Rules of Civil Practice merely requires a “ defense ” which is sufficient as a matter of law. In the light of the intent and purpose of rule 113 we think this should not be restricted to an affirmative defense only but as applied to that rule embraces matter provable under a general denial if founded upon facts established prima facie by documentary evidence or official record. We find no sound reason for applying a narrow definition of the word “ defense ” to the provisions of a rule of practice remedial in nature and designed to make more efficient the administration of justice. We fully approve the conclusion of the learned Special Term that such limitation would do violence to the intent of the rule and impair its effectiveness. (Pross v. Foundation Properties, Inc., 158 Misc. 304, 305; Lederer v. Wise Shoe Co., 276 N. Y. 459, 464, 465.)

Section 275 of the Civil Practice Act provides: “ Pleadings must be liberally construed with a view to substantial justice between the parties.” Under perfectly well-established rules of pleading, defendant is permitted to plead affirmatively matter that might be established under a general denial. (Staten Island Midland Railroad Co. v. Hinchliffe, 170 N. Y. 473.) “ Matter which would be sufficient under a general denial loses none of its efficacy by being pleaded as a defense.” (Crane, J., in Morgan Munitions Co. v. Studebaker Corporation, 226 N. Y. 94.) That is the accepted rule of pleading in this State. (Kelly v. National Bank of Whitehall, 190 App. Div. 760.) Under it these defendants might properly have set forth affirmatively the issues here raised under the denials and then moved under rule 113. Indeed, minutes of the executive committee and board of directors meetings are in fact pleaded affirmatively at length in addition to the denials.

The fifth paragraph of rule 113, under which defendants moved, does not require that the “ defense ” required by that paragraph of the rule must be an affirmative defense nor is defendants’ motion under that paragraph restricted to the eight classes of cases enumerated in the first paragraph of the rule. A party under the eight enumerated cases in the first paragraph of the rule is permitted to move upon affidavits setting forth evidentiary facts without the more stringent requirement of adducing documentary evidence or official record required under paragraph fifth. Defendants, moving under paragraph fifth, must show that the defense is founded upon facts established prima facie by documentary evidence or official record.

Defendants’ motion was authorized under rule 113 and the learned court at Special Term properly held that this suit is without merit and there is no really substantial issue to be tiied.

The judgment and order appealed from should be affirmed, with costs.

Present — Martin, P. J., O'Malley, Glennon, Untermyeb and Dobe, JJ.; O'Malley and Untermyeb, JJ., dissent and vote to reverse and deny the motion.