Willet v. Metropolitan Insurance

2 Bosw. 678

• Court: The Superior Court of New York City
• Decided: April 28, 1858
• Status: Published

Opinion

Woodruff, J.

The defendants by their answer first deny each and every allegation in the complaint contained, and then proceed by successive paragraphs, separately numbered, to admit, in terms, many of the averments in the complaint—and then, after setting forth certain other facts, insist that two persons, not parties to the suit, are necessary parties.

The plaintiff moves that the general denial or the specific admissions (one or the others) be struck out as false—or why the answer should not be made more definite and certain in regard to various particulars covered by the general denial, and not otherwise mentioned in the answer.

In regard to this alternative, it must suffice to say that an answer which puts in issue, each and every allegation in the complaint, does not leave it doubtful which allegations are put in issue, and I am not aware that the Court have ever assumed to direct the defendant to answer the separate allegations in detail. On the contrary, the Code permits a general denial, and we cannot therefore say that when such general denial is made we will direct it to be made specific.

The apparent uncertainty respecting the defendants’ answer in this case results from the fact that having first denied all of the plaintiff’s averments, the defendants proceed to admit some, and the plaintiff perceiving thereby that the first denial was insincere in some particulars, feels uncertain whether the defendants will insist upon their denial in other particulars when the trial shall come on. The only mode which occurs to me, by which a plaintiff can avoid this embarrassment, is by verifying his complaint. The defendant will then be compelled to say upon his conscience whether the allegations are true.

There is, however, no propriety in permitting two statements to stand in an answer which are, in terms, in direct conflict with each other. First, a denial of an averment, and second, an explicit admission of its truth. It tends to incumber the pleadings with inconsistencies, and no doubt may often render the real nature of the defence doubtful.

The general denial, forming the first clause of the answer, must be struck out in this case, unless the defendants within ten days amend their answer so that that part of the answer shall not deny the allegations which in the subsequent portion of the answer are admitted.

Costs of the motion to the plaintiff $10—to abide the event of the suit.