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Supreme Court, Kings Special TermJul 1, 1900
32 Misc. 152 (N.Y. Misc. 1900)
32 Misc. 15265 N.Y.S. 678

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July, 1900.

W.M. Rosebault for motion.

J.W. Gerard Jr., opposed.


This answer (set out above in full) is a sample of the unscientific and degenerate pleadings which have grown to be common in this part of the State, to the great perplexity and annoyance of trial judges. It takes a tedious perusal of them at the trial to find out what they mean, or, as is most usual, that they mean nothing.

The complaint is a scientific and precise pleading in substance that the defendant falsely published of the plaintiff that in the trial of a divorce action between him and his wife, flashlight photographs were introduced which showed the plaintiff and a woman alleged by his wife in the said divorce action to be his paramour, in a way that was evidence of their being in adultery, thereby charging that the plaintiff was guilty of adultery with the said woman. The answer could contain (1) a general denial of the complaint, or specific denials of parts of it; and then (2) any new matter, i.e., matter outside of the issue made by such denial or denials, i.e. matter which could not be given in evidence under such denial or denials, but constituting a "defence" to the action, i.e. that the charge of adultery complained of was true; and also (3) any new matter not constituting a "defence", but only a "partial defence", i.e. matter showing a lack of malice in the defendant, and which could therefore go in mitigation of that smart money damage which may be given for malice only (the actual damage done by a libel, as by any other tort, being of course not subject to mitigation or whittling down). This is the way of pleading established by the Code of Civil Procedure (§§ 500, 507, 508). It is simple enough, and a scientific, precise and brief answer could easily be framed in accordance with it. But this answer seems to be framed on no rule or theory whatever. It seems to have been drawn by a layman, except for its verbiage.

It starts out that "For a first, separate and distinct defence" it (1) "admits" a specified allegation of the complaint, and (2) "denies each and every other allegation in the complaint contained." To say a "first" defence would suffice. To add that it is "separate and distinct" can only be from a habit of useless verbiage. And to call an "admission" a "defence" is strange indeed. An admission is in fact no necessary part of an answer at all. And indeed to call a general denial a "defence" is not much better. In the nomenclature and terminology of pleading a denial is not called a "defence" but a denial. First in an answer comes a denial or denials, and then a "defence", if there be any, i.e. an allegation of new matter which cannot be given in evidence under a denial, but constitutes a defence, and to prove which the burden is on the defendant (Flack v. O'Brien, 19 Misc. 399; Green v. Brown, 22 Misc. 279; Von Hagen v. Waterbury Co., 22 Misc. 580).

Next in this answer comes a so-called "second, separate and distinct defence", made up of the same admission over again as is in the first, and then of (subdivisions 2 to 7 inclusive) several specific denials of particular allegations of the complaint, with an affirmative allegation here and there. This admission was needless in the first place, and its repetition here is redundant folly; and these denials are mere redundancies, and should also be struck out (Code Civ. Pro., § 545). They are all embraced in the previous general denial.

Then comes (sub. 8) an irrelevant and scandalous allegation that the plaintiff ill-treated his wife, which must be struck out. Next (subdivisions 9, 10, 11, 15, 16, 17, 18, 19, 20 and 24) come allegations of particulars which at best can only be deemed allegations of proposed evidence. Whether such matter be admissible or inadmissible as evidence makes no difference. It can be no part of a pleading. If (for instance) there be a judgment against the plaintiff, as pleaded, establishing the adultery alleged in the publication, and it is admissible as evidence to establish a defence, i.e. the truth of the publication, there is no more reason to plead it than to plead a letter written by the plaintiff admitting his guilt, in order that it may be admitted in evidence.

Next comes what is called a "third, separate and distinct defence" to the cause of action "and in mitigation" of damages. Subdivision 1 is that the "defendant here repeats and re-alleges each and every of the allegations, admissions and denials contained in the second defence." Denials have no place in a "defence", i.e. in what the Code calls a defence in pleading (sec. 500). They are mere surplusage there, and must be disregarded. A defence can contain only new matter, i.e. matter which cannot be given in evidence under a denial, but has to be affirmatively pleaded by the defendant in order that he may give evidence of it. If a defence, i.e. of new matter, should be demurred to as not sufficient to constitute a defence (i.e. that the new matter is not sufficient to constitute a defence), the fact that the pleader had incorporated in the new matter a repetition of a previous general or special denial could make no difference. The demurrer is to the defence, i.e. the new matter, and the repetition of the denial there would be irrelevant matter, which may always be disregarded in a pleading. There is one decision seemingly to the contrary, but it is by a divided court, and contrary to the provisions of the Code and other decisions, and not deemed authoritative (Fletcher v. Jones, 64 Hun, 274). It would be just as reasonable to say that such a defence of new matter was not demurrable because it contained any other irrelevant statement. It is a familiar rule that pleading to a complaint or answer containing immaterial or irrelevant matter does not put such matter in issue. It only puts the material or relevant matter in issue. And regardless of this, to the extent that this subdivision repeats the things in the second defence which must be struck out as above indicated, such repetition must be struck out also. These things are no more relevant or permissible here than there; or if any of them be relevant as a "partial defence", then it must be here fully pleaded. And the same holds good in respect of the allegations repeated from the said second defence in subdivision 2 of this third defence.

Then comes a so-called "fourth, separate and distinct defence", to which the foregoing also applies. And in conclusion it may be said that the useless use of these words "separate and distinct" does not seem to have induced the pleader to be at all separate or distinct, the pleading being on the contrary a confused and bungling mass.

An answer could be drawn on one sheet of paper which would enable the defendant to give in evidence all that this answer stands for, viz.: An answer in just so many words (1) denying each and every allegation in the complaint contained except that the defendant is a corporation, and then pleading (2) "for a defense" that the publication is true, viz., that the plaintiff did commit adultery with the said (naming her) at (giving time and place). Then if there be any extrinsic fact known to the defendant at the time of the publication, and showing lack of malice, which could not be given in evidence under the general issue it could be pleaded as a second defense, i.e. as a partial defense, i.e. in mitigation of smart money damage.

The motion is granted, with $10 costs.

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