January 3, 1913.
George W. Schurman, for the appellants.
Robert R. Reed, for the respondent.
Appeal by the Union-Buffalo Mills Company and its officers and directors, and a separate appeal by the defendants, composing the firm of Fleitmann Co., from orders requiring them to amend their separate answers so that the same shall "contain a general or specific denial of each material allegation of paragraphs" 3 to 33 inclusive, "of the complaint controverted by the defendants or of any knowledge or information thereof sufficient to form a belief; and further that said denials and each of them shall be definite and certain so that the precise meaning and application thereof is apparent." The orders also directed the defendants to serve copies of their amended answers within twenty days, and in default thereof paragraphs 2 to 10 inclusive of the answers are ordered to be stricken out.
The action was commenced on the 20th of August, 1912, to prevent the Union-Buffalo Mills Company from increasing its capital stock by the issue of what is termed a prior preferred stock, to authorize which a meeting of the stockholders had been called. Plaintiff also sought to enjoin Fleitmann Co. from voting in favor of the proposed issue upon certain common stock held by it, and to compel a cancellation of that stock, and for an accounting.
The answers of the Union-Buffalo Mills Company and Fleitmann Co. are substantially the same. In the 2d paragraph the defendants "admit and allege" (then follows the statement of certain facts) and concludes, "except as so expressly admitted, said defendants deny the allegations and each of them in paragraph third of the said amended complaint contained." This paragraph well illustrates the other paragraphs of the answer. What the plaintiff wants, and to which he claims he is entitled, is a specific admission or denial of the facts set forth in the complaint.
The action is in equity and the complaint quite voluminous. It is difficult to see what bearing some of the facts set forth in the complaint have upon the issue sought to be tried. After a consideration of both the complaint and answers I do not see how the defendants could truthfully, or with safety, specifically admit or deny each allegation in the complaint. The complaint is not free from criticism. It does not contain, as required by section 481 of the Code of Civil Procedure, a plain and concise statement of the facts constituting the alleged cause of action; on the contrary, some of the matter pleaded is evidence or a legal conclusion of the pleader. The result is a long complaint, and this of itself necessitates a longer answer than would otherwise be required. Defendants were not required in answering to admit the allegations of the complaint in the precise language there used. They could state the facts they admitted to be true and deny those not admitted. This practice is recognized in several well-considered authorities. Thus in Grant v. Pratt Lambert ( 52 App. Div. 540) the statement is made that the rule governing the effect of admissions contained in a pleading requires that the matter shall be taken as a whole and the admission is limited by any statement therein which qualifies or explains.
In Griffin v. Long Island R.R. Co. ( 101 N.Y. 348) the denial was of "each and every allegation of the complaint not before admitted or controverted."
In Lake Ontario National Bank v. Judson ( 122 N.Y. 278) it was said: "The denial by the defendant in his answer, except as therein admitted, of each and every allegation of the complaint put in issue any material allegation of the complaint not distinctly admitted by the answer." (See, also, Burley v. German-American Bank, 111 U.S. 216; Clark v. Dillon, 97 N.Y. 370.)
Neither the complaint nor answer can be said to be a model pleading, but one seems to be as good as the other. Whether this be so or not, I am unable to see any difficulty in determining what the defendants admit and what they deny.
The orders appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
INGRAHAM, P.J., CLARKE, SCOTT and DOWLING, JJ., concurred.
Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs. Orders to be settled on notice.