Schwartz v. Ribaudo

52 Misc. 102, 101 N.Y.S. 599

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1906
• Status: Published

Opinion

Fitzgerald, J.

Plaintiffs, at the commencement of the action, were the owners of premises occupied by defendant under a lease from the former owner (Fannie Meyers) ; the execution of this lease is set forth in the first paragraph of the complaint and is not denied by the answer. The second paragraph of the complaint is as follows: “ That on or about the first day of December, 1905, the said Fannie Meyers by deed dated and recorded on said day conveyed the aforesaid premises to plaintiffs herein.” By the terms of the lease it appears that the yearly rent reserved was the sum of $3,600, payable in equal monthly installments of $300 per month in advance, same to be paid on the tenth day of each and every month during said term. The third paragraph of the complaint alleges a demand made on the 10th day of December, 1905, for the December rent, “ no part of which has been paid and that the sum of $300 with interest from that date is now due and owing.” These two paragraphs (2d and 3d) are denied by the answer as follows: “ Defendant has no knowledge or information sufficient to form a belief and denies the same.” This form of denial appears to be insufficient to raise an issue upon the pleadings. The averment of the record of the deed placed the defendant in a position to at once obtain knowledge and information and a party cannot plead ignorance of a public record to which he has access. . Ency. Pl. & Pr. 813; Ketcham v. Zerega, 1 E. D. Smith, 553; Zivi v. Einstein, 1 Misc. Rep. 212. ¡Neither are the averments of demand and nonpayment properly met by this form of denial, for the reason that the facts alleged import the personal knowledge thereof in the defendant (Singer v. Effler, 16 Misc. Rep. 334) ; but .treating the answer as a good general denial and assuming that it put in issue the allegation of nonpayment (Cochran v. Reich, 91 Hun, 440; Knapp v. Roche, 94 N. Y. 329), it was clearly error to have allowed, on cross-examination of plaintiffs’ witness, a line of questions tending to establish affirmative defenses not pleaded. It is well settled that new matter constituting either a complete or partial defense must be pleaded. McKyring v. Bull, 16 N. Y. 303; Gabay v. Doane, 77 App. Div. 413. It cannot well be claimed that plaintiffs were called upon to plead or prove as essential to their cause of action that there had neither been an eviction nor an accord and satisfaction; and evidence tending to support such defenses, therefore, was not admissible under a general denial. Cochran v. Reich, supra. It is claimed that other errors were committed by the learned trial court; but it is unnecessary to pass upon them, as, for the reasons given, a verdict for defendant rendered by direction cannot be permitted to stand.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

Gildebsleeve and Davis, JJ., concur.