Maretzek v. Cauldwell

19 Abb. Pr. 35, 2 Rob. 715

Opinion

By the Court.

Footnotes

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*—McCunn, J.

The appeal in this case is from an order made at special term by the Chief-Justice, overruling the demurrers of the plaintiff to the first, second, and third portions of the defendants’ answers, and also denying the plaintiff’s motion, which is of an extraordinary mixed nature, to compel defendants to make more certain and definite the fourth, fifth, sixth, seventh, and eighth defences of the answer, as well as to strike out as irrelevant and redundant the sixth and seventh and part of the eighth defences of said answer, and other parts of defendants’ answers, specified in the plaintiff’s notice of motion at special term.

In regard to the question of the demurrer, there can be no doubt that the Chief-Justice was clearly right in overruling it.

The portions of the answer demurred to certainly do not contain new matter that constitutes a counter-claim or defence", as provided for by the 153d section of the Code. These portions of the answer merely deny the allegations of the complaint, and are properly pleaded.

The case cited by the Chief-Justice (Smith a. Greening, 2 Sandf.,702) is fully sustained by the case of Neuman a. Otto, decided by Chief-Justice Duer (4 Sandf., 668).

The motion to render more definite and certain the fourth, fifth, sixth, seventh, and eighth defences was properly denied. Shell allegations operate as a mere notice, if they form part of the answer.

This doctrine was so held in the case of Graham a. Stone and Brown a. Orvis, both being cases decided in the Court of Appeals', and is so well settled that no doubt can now arise in regard to this principle in actions for libel and slander. So also in regard to the ninth defence of the answer.

It is certainly definite enough in this particular to fully apprize the plaintiff of the defence to be adopted on the trial, and to prepare him to meet the issue. It specifically alleges “ that' the cards of free admission were furnished by the plaintiff’s regular agents, and that some of the stockholders and sub scribers complained to the defendants of said things, and such foregoing matters were publicly canvassed by the general public.” The Chief-Justice, however, seems to think that the defendants should be compelled to allege the names of these regular agents of the plaintiff, and also of the stockholders and subscribers who complained to defendants. But this he bases simply upon the presumption that the defendants' knew their names, for the reason that they do not allege that their names are unknown. On the general principle maintained by the learned Chief-Justice, and sustained by the cases cited by him, I can see no reason for exception in this regard; and, although fully concurring with him in his very lucid and able opinion, I must differ with him in regard to granting the motion to compel the defendants to allege the names of the agents, and stockholders, and subscribers, referred to in that portion of their answer; but this portion of the order not having been appealed from by the plaintiff, the entire order at special term must be affirmed with costs.

Robertson, Ch. J., and Monell, J., concurred.

Present—Robertson, Ch. J., and Monell and McCunn, JJ.