Morley v. Combs

124 N.Y.S. 19

• Court: New York Supreme Court
• Decided: June 30, 1910
• Status: Published

Opinion

FOOTE, J.

The complaint alleges eight separate causes of action for libel and slander, based upon alleged statements, letters, and postal cards made and published by defendant, charged to impute unchastity to plaintiff, who is a married woman, and unfaithfulness to her marriage vows.

Defendant served an answer to the complaint as to all the causes of action except the fourth, seventh, and eighth, and a demurrer as to those causes of action. This demurrer was overruled, with leave to answer, and the defendant seems to have served a separate answer as to those three causes of action, so that the defendant now has two separate answers in the case—one purporting to be an answer to the fourth, seventh, and eighth causes of action, and the other an answer to the other causes of action. This practice is certainly irregular. The Code provides for only one answer by a defendant, and there is no such practice as separate answers by the same defendant to separate causes of action.

The copy answer submitted by defendant upon this motion is in form an answer to the fourth, seventh, and eighth causes of action. The copy answer attached to the motion papers submitted by plaintiff is in the same form, except that it purports to be an answer of the whole complaint; but in the notice of motion it is described as an answer to the fourth, seventh, and eighth causes of action. I must therefore assume that the answer to which this motion relates is an answer to the fourth, seventh, and eighth causes of action alone, and that there is another answer, which has not been submitted upon this motion, to the other causes of action. Under these circumstances, I think the present motion cannot be entertained. The answer submitted on this motion cannot be treated as the defendant’s answer in' the case, and motions to correct the answer should not be made until the defendant has served an answer to the whole complaint. This motion should therefore be denied, without costs, with leave to renew after the defendant has answered the whole complaint by a single answer, or upon papers showing that the present answer is an answer to the whole complaint, and, if it is not such, with leave to defendant to serve an answer to the whole complaint within 20 days.

An examination of the answer submitted upon this motion suggests the following observations in respect to its sufficiency: (1) The denial is not in proper form. It is a denial of the complaint, “except as controverted,” which is not a good form of denial. It does not point out precisely what allegations of the complaint are denied. The denial must be either general or specific, and in a case of this kind, where the answer is not required to be verified, though the complaint is verified, there is no reason why the form of denial should not be a general one. (2) The matter pleaded in justification is not a justification, for it is not as broad as the charge. If the defendant wishes to plead matters in justification, she must allege the truth of the particular facts as to which she wishes to justify on the date or at the time of the publication, and that can be done without admitting that the defendant did in fact make the publication. (3) The matter in mitigation is not properly pleaded. It should be pleaded as a separate defense, and stated to be a partial defense.

An examination of the case of Cruikshank v. Press Pub. Co., 32 Misc. Rep. 152, 65 N. Y. Supp. 678, will serve to point out many of the defects in the present answer, and suggest the proper form of answer in this class of cases.