Mattison v. Smith

19 Abb. Pr. 288, 1 Rob. 706

• Court: The Superior Court of New York City
• Decided: November 15, 1863
• Status: Published

Opinion

By the Court.

*—Bosworth, Ch. J.

The plaintiffs appeal from an order denying a motion that the defendant Smith be required to amend his answer, by alleging which of the allegations in the complaint he denies, and to make it definite and certain, so that the precise nature of his defence (if any he has) be made apparent.

The answer, exclusive of the title of the action, is in these words, viz., “Edmund A.'Smith, one of the defendants in above action, answering the complaint in said action for himself, denies each and every material allegation in said complaint contained.” The complaint and answer are verified.

The Code enacts that “ the answer pf the defendant must contain—1. A general or specific denial of each material allegation of the complaint controverted by the defendant,” &c.

This imports that the answer, by its terms, must show which of the allegations of the complaint the defendant controverts, and those allegations he may deny in a short form of denial, or he may deny them specifically.

The Cod,e designed that the pleadings, under it should be such as would leave it free from doubt what issues of fact were raised by them; and that to ascertain this, it would not be "necessary to consider abstract principles of law, and determine the legal .effect of any particular allegation of fact, in respect to which the judges of subordinate courts might not agree; and the judges of the court of last resort might, probably, differ..

If the answer, on a just construction, means that the defendant denies each and every allegation of the complaint which he deems material, then it is quite clear that there is no mode of ascertaining which of the allegations he controverts, or which ones he has denied, either in fact or intent.

If it means that he denies each and every allegation which, in intendment of law, is material; then it is evident that, as the court must decide which are material, the answer is, in legal effect, a denial of each and every allegation which the court shall decide to be material.

An answer in form, thus, “The defendant denies each and every material allegation in the complaint which the court shall hold to be material,” would not inform a plaintiff which of the allegations the defendant, controverted, or intended to deny.

The Code, by requiring a defendant to verify his answer where the complaint is verified, intended to require him to admit all the allegations which, if true, were true of his own knowledge, or incur .the risk of suffering the pains and penalties of perjury.

. The fact that some men, when not required to answer on oath, will deny some allegations of the complaint which they would not dare to deny on oath, furnishes no argument in favor of the sufficiency or definiteness of the present answer. The Code expects good faith and common honesty in putting in all answers, whether verified or not; but as that ,is not always practised, it has provided that, on motion, sham answers may be stricken out (§ 152) ; and evasive and indefinite ones may be required to be made definite and certain. (§160.)

It has been held that an answer which denies “ each and every allegation of the complaint,” is sufficient. (Kellogg a. Church, 4 How. Pr., 339.) So also an answer which denies all the allegations which are contained between specified folios. (Gassitt a. Crocker, 9 Abbotts' Pr., 39.) In these cases, by merely looking at the words of the complaint and answer, it is apparent what allegations are denied. The answer by the words it contains describes and identifies the allegations which are denied, so that any person of intelligence, whether lawyer or lajman, can determine with accuracy what allegations are put at issue.

In the present case, it is impossible to ascertain from the answer what is the ground of the defence. ' ETo new matter is set up; and it cannot be known from the answer on which of the allegations of fact found in the complaint and their supposed falsity, the defence is to rest.

Such a form of answering should not be encouraged. It is, to say the least, evasive, and if sanctioned, would tend to authorize the general issue in all cases, although a defendant would not hazard a specific or even a general, denial in terms, on oath, of every allegation which is clearly material.

This is an equity suit, by judgment and execution creditors;, and such an answer is in conflict with the spirit, as well as letter, of all the rules and practice applicable to answers in such suits. The mode of answering prescribed by the Oode, assimilates more nearly to the chancery than to the common-law ^practice.

It, however, permits a general denial of every allegation which-a defendant wishes to controvert, and can conscientiously deny. But the word “ controvert,” which has been retained in this section in all the changes made in its form, must have some meaning given to it, if it can appropriately have any meaning.

The word “ controverted,” in connection with the word “ denial,” whether the denial be general or specific, requires that 'the answer should, by its words, so describe the allegations of the complaint controverted, that, any person of intelligence, though not a lawyer, can identify them.

An answer which so denies the allegations of a complaint, that it must be left to the uncertainty of a. future judicial decision, however learned or unlearned the judge may be.who makes it, to ascertain which are denied, and which are not denied, is one which no plaintiff should be told he must be content to receive.

The Code has not introduced such laxity in pleading, bio system ever in force in this State, permitted it. There has been no decision cited, which sanctions it.

I think the order should be reversed, and the defendant required to amend, his answer so as to make it definite and certain ; and render the ground of defence apparent, by a clear identification of the allegations of fact which the defendant controverts.

No costs of the appeal should be given to either party; and plaintiff should have $10 costs of the motion at special term, to abide the event.

Present, Bosworth, Ch. J., White and Monell., JJ.