Simmons v. Simmons

4 N.Y.S. 221, 21 Abb. N. Cas. 469

• Court: New York Supreme Court
• Decided: July 15, 1888
• Status: Published

Opinion

Andrews, J.

It is entirely clear that neither paragraph 3 nor paragraph 4 of the answer, as pleaded, sets up a complete defense to the cause of action contained in the complaint. Section 508 of the Code authorizes a partial defense to be pleaded, but provides that “it must be expressly stated to be a partial defense, ” and, if either or each paragraph was intended as a partial defense, the pleader has not complied with the provisions of said section. If it was intended in said paragraphs to plead facts which would go in mitigation of damages, it should have been so stated. Under these circumstance, I think the plaintiff is entitled to an order requiring the defendant to make the allegations of said paragraphs more definite and certain, so that it will clearly appear whether such paragraphs are intended as defenses or partial defenses, oías matter in mitigation of damages. The order may provide that, if an amended answer is not served within 10 days, such paragraphs shall be stricken out; also that, if the matter contained in said paragraphs is pleaded as defenses or partial defenses, plaintiff may demur within 20 days. As such defenses or partial defenses would not constitute counter-claims, and as a reply to new matter in an answer, not constituting a counter-claim, cannot be directed under section 516 of the Code, upon plaintiff’s application, the order will not authorize plaintiff to reply. The motion was not made within 20 days prescribed by rule 22, and no costs will be granted to either party. The order will be settled on notice.