Summary
In Green v. Brown, 22 Misc. 279, the court at Special Term held: "That there is incorporated in the defence a denial of the allegation of the complaint that the note was given for value, does not prevent the demurrer from being sustained.
Summary of this case from Rogers v. MortonOpinion
January, 1898.
Edward F. Dwight, for plaintiff.
Howard A. Sperry, for defendant.
A note or other contract for the payment of money is not usurious and void for providing for the payment of more than the statutory rate of interest after maturity (Pomeroy v. Ainsworth, 22 Barb. 124; Sumner v. People, 29 N.Y. 337; Bank of Chenango v. Curtiss, 19 Johns. 335).
That there is incorporated in the defence a denial of the allegation of the complaint that the note was given for value, does not prevent the demurrer from being sustained. This denial had already been pleaded in the appropriate place for denials, and should not have been repeated. And a denial is not a "defence". It can have no place in a defence. A denial in a defence is mere surplusage, and is not to be regarded. Not even a novice in pleading should plead a "denial" as a "defence". In an answer "denials" are pleaded, if there be any, and then come "defences." The latter always were, and they still are, distinct from the former in both name and substance. A defence may only contain new matter, viz., matter outside of the issue raised by a general or special denial (Code Civ. Pro., sec. 500). A defendant may set forth as many defences as he has, "whether they are such as were formerly denominated legal or equitable," and each must be separately stated and numbered (sec. 507). This illustrates the confusion of calling a denial a defence, for who in referring to denials would distinguish them in respect of whether they are "legal or equitable"? Nothing should be pleaded "as a defence" the burden of proving which is not upon the defendant. Courts are liable to take careless pleaders at their word, and throw upon the defendant the burden of proving matters alleged as a defence which is no defence at all, but embraced within the general issue, thereby enabling the plaintiff to prevail, as in Whitlatch v. The Fidelity Co. ( 149 N.Y. 45.) It has become almost the rule to find contributory negligence pleaded as a defence, although that issue is raised by a denial, and the burden of it is upon the plaintiff. It has even become quite common to find answers which formally plead not only denials, but also admissions under the had of "For a defence", whereas an admission is neither a denial nor a defence, and does not need to be pleaded at all, for every material allegation not denied stands admitted. I do not overlook that in Fletcher v. Jones (64 Hun, 274) it was held that a demurrer to a defence of new matter in justification in an action of libel, which was adjudged to be no defence at all, could not be sustained because the previous general denial to the complaint was found to be reiterated in such defence; but I do not conceive that case to be regarded as more than local authority, if it remains even that. A general denial repeated in a defence is no more to be regarded than any other surplusage or idle verbiage found there. The broad meaning which has been given to the word defence in section 3253 of the Code has no application to the rules of pleading. The demurrer is sustained.
Demurrer sustained.