Corning v. Roosevelt, 25 Abb. N. C., 220. O'BRIEN, J. The defendant has demurred to the reply inter- 2 posed by the plaintiff to the counterclaim on the ground that it appears upon the face thereof to be insufficient in law. In determining this question it is insisted that all the pleadings should be considered and judgment given against the party who has committed the first error. In the case of Williams v. Williams, recently decided by this court, and reported in the New York Law Journal, May 29, 1890, it was held that upon a demurrer to a defense, which would otherwise have been sustained, it should be overruled, and judgment given in favor of the defendant, for the reason that it appeared that the complaint was insufficient in not stating facts sufficient to constitute a cause of action. 3 One good reason, among others, for this rule that might be assigned is that, however defective and insufficient the defense may be, it is, of course, a sufficient defense to an insufficient complaint. Graham v. Dunnigan (6 Duer, 629) was a case of a demurrer to a counterclaim, and the court, having viewed the complaint as sufficient, expressly declined to pass upon the question as to whether a complaint could be attacked for insuffi- 4 ciency on a demurrer to the counterclaim. The other cases referred to and commented upon in Williams v. Williams (supra), holding that the sufficiency of a prior pleading could be inquired into, were all cases of demurrers to defenses. It will thus be seen that the precise question here presented has not been directly passed upon. And while a counterclaim is to be regarded as a new and original cause of action in defendant's favor against the plaintiff, as to which the burden of proof is on the defendant, and which, if insufficient, is to be dismissed, yet it is a pleading in the action resorted to to offset plaintiff's demand in whole or in part, and at times is of such a nature as to entitle the defendant, in addition to securing the satisfaction of plaintiff's claim against him, to an affirmative judgment in his favor. All the pleadings, from the complaint to the demurrer and the reply, are, when used as in this case, but pleadings in a single action, and I am inclined to the view that the true rule is, as has been stated in Gleason v. Youmans (9 Abb. N. C., 108), 5 Corning v. Roosevelt, 25 Abb. N. C., 220. 6 that the demurrer runs through all the preceding pleadings and judgment is to be given against the first party whose pleading is defective in substance. Applying this rule, therefore, and assuming that the demurrer to the reply raises a question as to the sufficiency of all the preceding pleadings, it remains to be determined not only whether the reply itself is sufficient on its face, but whether the counterclaim is good, and as to whether the complaint itself is defective in substance. 7 The demurrer to the reply I do not regard as well taken, for the reason that it contains a sufficient denial of the averments constituting the counterclaim. As to the counterclaim itself it is defective, in that there is no demand for any judgment thereon in defendant's favor as against the plaintiff. In addition, there are other defects which it is needless to point out in view of the conclusion at which I have arrived, that the complaint itself is insufficient. The plaintiff brings the action as assignee of a right of action which arose upon contract in favor of his assignor, for the purchase and sale of certain bonds and stock. Upon a breach of the 8 contract sued upon, the plaintiff's assignor, or plaintiff himself, as assignee of the cause of action, could have sued, either claiming damages for the breach, or brought an action in effect for the specific performance thereof. This latter is the remedy here sought, and is the theory upon which the plaintiff's complaint has been framed. 9 The defendant agreed to pay the sum of $1,700 in four installments of $425 each, for which he was to receive from plaintiff's assignor, the Julian Electric Traction Company, two certain first mortgage bonds, of the par value of $1,000 each, and twenty shares of stock. One of the bonds and half of the stock were to be delivered when one-half of the amount, or two of the installments, were paid as provided. When two installments were paid, one of the bonds and half of the stock were delivered to defendants. In addition, defendant paid the third installment, and then refused to pay the fourth, and it is to recover this fourth installment that this action is brought. It seems reasonably clear that, upon the payment of this installment, which would fully complete the contract on de Corning v. Roosevelt, 25 Abb. N. C., 220. fendant's part, the latter would be entitled to an additional bond 10 and stock, as in the agreement provided. 11 Unless upon the trial plaintiff could show that he was ready and willing to perform the contract, and that he was able to deliver the bond and stock, I do not see how he would be able to force the defendant to specifically perform his part of the contract by paying the last installment. To obviate this objection, however, the complaint alleges, not that plaintiff, but that plaintiff's assignor, the Traction Company, is ready and willing to transfer to the defendant the other ten shares, upon payment by the defendant to the plaintiff, to whom the company has assigned its claim herein, the amount which is still due. Thus it will be seen that the plaintiff, who is neither the owner nor holder of the bond or stock which defendant contracted to purchase, brings a suit to compel the defendant to specifically perform his contract by paying the amount still due, without being in a position himself to complete the contract, upon defendant's so paying such amount. It would appear, therefore, that but part of the cause of action has been assigned, and that the Traction Company should have been joined as a party, so that, upon pay- 12 ment by the defendant, the obligations which would then rest upon the company could be fulfilled, or, in addition to assigning to plaintiff the right to demand the amount due from defendant, they should have assigned as a part of the cause of action the stock necessary to be delivered to defendant upon payment by him. For the reason, therefore, that I regard the complaint as insufficient, there should be judgment upon the demurrer in defendant's favor, and with leave to serve an amended complaint, upon payment of costs. Clark v. Dillon, 15 Abb. N. C., 261. CLARK v. DILLON. New York Common Pleas, General Term, 1882; Again, Court of Appeals, 1884. [Reported in 15 Abb. N. C., 261; s. c., in part, 97 N. Y., 370.] 1. A denial in an answer of "each and every other allegation in said complaint contained, not hereinbefore specially admitted, qualified or denied," is insufficient to raise an issue, and may be wholly disregarded at the trial. 2. Neither court nor opposing counsel should be called upon to speculate upon what allegations of a complaint have been specifically admitted, qualified or denied. 3. Whether or not an answer denying only such facts as are not admitted, qualified or denied by previous allegations in the answer, under the rule established by the Code of Civil Procedure, requiring facts in plain and concise language alone to be stated, is good pleading, query? 4. If new matter in the answer goes to admit or qualify the legal effect of allegations in the complaint, such allegations are not traversed by a subsequent general denial in the same answer of allegations not thereinbefore "admitted, qualified or denied." 5. Hence, in an action for negligence, where such general denial was preceded by allegations that the injuries were caused and contributed to by the person injured, and before the action was brought, defendants fully settled and compromised the claim with plaintiff,-Held, that the allegation in the complaint that the defendants made the excavation by which the injuries were occasioned was admitted, and proof of that fact at the trial was unnecessary. 6. Upon the trial of an action for loss of services, the record of a prior action by the injured person, introduced by defendants in evidence, showed, from the answer served therein, that they admitted that the place in question was a public street and that they caused the excavation to be made therein.-Held, that the record unexplained, must be taken as an admission by defendants of the existence of the facts therein asserted, and dispensed with proof by the plaintiff thereof. 1 I. May, 1882. Appeal by the defendants from a judgment for the plaintiff entered upon the verdict of a jury. This action was brought by Albert C. Clark against Sidney Dillon and others, for the loss of the services of plaintiff's wife, who was injured by falling into an excavation made by defendants in a city street. Clark v. Dillon, 15 Abb. N. C., 261. The answer averred that the alleged injuries charged in the 2 complaint "were brought about, caused and contributed to " by the wife, and that in a prior action brought by her to recover damages for such injuries, the husband had promised and agreed to waive any claim on his part, if the defendants would settle the action brought by his wife, and that such settlement had been made. The answer then set forth that the defendants deny each and every other allegation in said complaint contained, not herein before specially admitted, qualified or denied." 66 Upon the trial, the plaintiffs offered no evidence that the defendants made or caused to be made the excavation, and on that ground, defendants made a motion to dismiss the complaint. The court denied the motion, and the defendants excepted. The defendants also excepted to the refusal of the court to charge the jury that "before the plaintiff can recover, the jury must determine, as a matter of fact, that the defendants made, or caused to be made, the excavation into which the plaintiff's wife fell. From the judgment entered for the plaintiff upon the verdict of the jury in his favor, defendants appealed. BEACH, J. The defendants' counsel asked the trial court to charge the jury that before the plaintiff could recover, they must determine that defendants made the excavation as a matter of fact. No direct evidence was given of the fact. The learned judge held there was no denial of the allegation upon the subject in the complaint. The sufficiency of the pleadings to raise an issue, is the question presented by the appeal. 3 4 An answer must contain a general or specific denial of each material allegation of the complaint controverted by the defend- 5 ant (Code Civ. Pro., § 500, subd. 1). This is a plain rule by which the pleading must be judged, and commends itself by simplicity, directness and the clearness resulting from adherence by the pleader. Under the text of the answer the denial is problematical, leaving for opinion what should not be matter of doubt. Neither court nor opposing counsel should be called upon to speculate upon what allegations of a complaint have been specifically admitted or denied; and what may or may not be qualified, |