Sanford v. Rhoads

39 Misc. 548, 80 N.Y.S. 404

• Court: New York Supreme Court
• Decided: January 15, 1903
• Status: Published

Opinion

Gaynor, J.:

The first paragraph or subdivision of the answer consists of admissions, as though admissions were a necessary part of or ought to be in an answer; and the second paragraph, of denials.

Then come five defences, each being introduced by an allegation that the defendants “ Re-allege all the allegations contained in the first and second paragraphs of this answer, to be of and to have the same force and effect as though the same were herein again set forth in full and at large.”

The motion to strike this matter out of each defence as irrelevant and redundant under section 545 of the Code of Civil Procedure must be granted. It is useless to again point out the reason why denials cannot be part of a “ defence ”. A “ defence ” can only consist of matter which cannot be proved under, a denial, and which, taking every allegation of the complaint to be true, nevertheless defeats the action. Any other matter in it is irrelevant there. A “defence” is “confession and avoidance”, i. e., it is on the basis that confessing the complaint to be- true, the matter pleaded as a defence nevertheless avoids or defeats it. The phrase has recently been turned about and put in disjunctive form, being changed to read “ avoidance or confession ” (170 N. Y. p. 481), but I suppose nevertheless that it has lost neither its form nor its life in our educated profession.

Motion granted, with $10 costs.