Thompson v. Halbert, 21 Abb. N. C., 266.

alleging, "as a further answer to the first cause of action," that 2 by the laws of Kansas, where the maker of the note and mortgage resided and where the land mortgaged was located, the note and mortgage were "barred by the statute of limitations," and that " no action can now be maintained nor any recovery had thereon."

To this defence the plaintiff demurred, "upon the ground that it is insufficient in law upon the face thereof."

The Special Term of the Supreme Court sustained the demurrer, holding that the matter alleged was a partial defence 3 only, which, by Code Civ. Pro., § 508,* must be expressly stated to be such, and being pleaded as an absolute defence was demurrable.

The General Term reversed the decision below and overruled the demurrer, holding that as no informality in the manner of presentation of the defence was stated in the demurrer, nor could be under Code Civ. Pro., § 508, the only question on the demurrer was whether the matter demurred to was sufficient as the statement of an entire or partial defence; and that if the note 4 should be proved to be of no value by reason of the statute of limitations, then the answer contained a complete defence, while if it should be shown or considered to be of some value, then the answer contained a partial defence (Decision reported in 40 Hun, 536).

From the interlocutory judgment and order of the General Term plaintiff appealed.

The Court of Appeals reversed the judgment.

FINCH, J. This action was brought to recover damages for 5 the conversion by the defendants of two notes and the mortgages which secured them. The first cause of action pleaded, respects

*Code Civ. Pro., § 508. A partial defence may be set forth, as prescribed in the last section; but it must be expressly stated to be a partial defence to the entire complaint, or to one or more separate causes of action therein set forth. Upon a demurrer thereto, the question is whether it is sufficient for that purpose. Matter tending only to mitigate or reduce damage, in an action to recover damages for the breach of a promise to marry, or for a personal injury or an injury to property, is a partial defence within the meaning of this section.

Thompson v. Halbert, 21 Abb. N. C., 266.

6 a note and mortgage upon land in Kansas, dated in 1871, and as an answer to that the defendants alleged in their seventh defence that by the laws of that State in which the maker of the note resided and the land was located, the note and mortgage were barred by the statute of limitations, and that no action could now be maintained thereon. To this answer the plaintiff demurred on the ground that it was insufficient in law on the face thereof. The demurrer was sustained by the Special Term, but that decision was reversed by the General Term on appeal.

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The facts

We are of opinion that the reversal was erroneous. stated in the answer were not pleaded as a partial defence or in mitigation of damages. Where that is attempted the Code explicitly requires that the answer shall so state, and give notice that the facts relied upon are intended as a partial defence (Code Civ. Pro., § 508). When no such statement is made the plaintiff has the right to assume, and the court must assume, that the new matter alleged is pleaded as a complete defence, and if demurred to must be tested as such (Matthews v. Beach, 5 Sandf., 256; s. c. 8 N. Y., 173).* Applying that test, the answer is insufficient. 8 It merely affects the amount of damages to be recovered by tending to reduce the value of the securities converted.

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It confesses but does not avoid. It admits the cause of action and questions only its extent and amount, and is not a bar to recovery. It is bad, therefore, as a defence, and the Special Term was right in so holding.

It is not denied that the facts alleged, if admissible at all, may nevertheless be put in evidence for the purpose of affecting or reducing the value of the securities (Booth v. Powers, 56 N. Y., 22). So far as the question of pleading is concerned, they are admissible under the denials of the answer. The plaintiff must prove the value of the articles converted as the basis of his recovery, and what he may prove the defendants, denying, may disprove. The plaintiff averred the value of the note to be $300, and the accrued interest at 12 per cent. The defendants deny

*The decision in 8 N. Y. was on appeal from final judgment after trial had, in which the interlocutory judgment on demurrer, which was affirmed in 5 Sandf., was also brought up for review and the decision approved, though the final judgment was reversed for error at the trial.

Simmons v. Simmons, 21 Abb. N. C., 469.

that allegation, and aver that the same had no value, and also 10 deny the alleged conversion. While the allegations of value and no value may perhaps not make a technical issue, because needless, yet under the denial of the answer, which puts in issue plaintiff's whole cause of action, the defendants have a right to prove any facts which affect the value of the securities, and possibly to an amount which would reduce the recovery to merely nominal damages; and so, as a question of pleading, and although the seventh defence be stricken out, may prove the law of Kansas and show the difficulty and uncertainty of collection (Knapp v. Roche, 94 N. Y., 329, 333). So much the plaintiff concedes. Precisely what useful purpose was served by interposing this demurrer it is therefore difficult to see, but the question is raised and must be correctly decided.

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The argument of the General Term appears to be that the facts pleaded might induce the jury to find that the securities converted were absolutely valueless, and so the defence become a complete one. It would be more correct to say that the damages would become merely nominal although the conversion would remain and the wrong itself be undefended. An answer 12 does not bar a cause of action and so constitute a defence when it affects merely the measure of damages.

The judgment of the General Term should be reversed, and that of the Special Term affirmed with costs, but with leave to the defendants, upon payment of costs of the demurrer, to plead anew or amend within twenty days after entry and notice of this judgment.

All concurred.

SIMMONS v. SIMMONS.

New York Supreme Court, Chambers, 1888.

[Reported in 21 Abb. N. C., 469.]

Where portions of an answer as pleaded do not set up a complete defence to the cause of action contained in a complaint, and the pleader omits to state that the defence is pleaded as a partial defence, an order will be granted requiring the defendant to make those allega

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Simmons v. Simmons, 21 Abb. N. C., 469.

tions more definite and certain, so that it will clearly appear whether such paragraphs are intended as a complete or partial defence. Hence in an action for alienating the affections of a husband, allegations of his previous divorce, or of previous separation, should be stated as a partial defence.

Motion to make allegations in an answer more definite and certain.

Action for damages for alienating the affections of the plaintiff's husband.

The complaint, after stating plaintiff's marriage in 1857, and subsequent harmonious relations with her husband, alleged that defendant, in 1873, began to alienate plaintiff's husband's affections, and set forth facts showing improper relations of her husband and the defendant; plaintiff's frequent forgiveness 2 of her husband; his desertion of her in 1882; and his marriage in Massachusetts with the defendant after he had pretended to have obtained a divorce from plaintiff in Rhode Island.

The defendant's answer (1) admitted plaintiff's marriage, and (2), denied each and every other allegation of the complaint; and then alleged as follows:

III. Said defendant further claims that on the day of November, 1887, a decree of judgment of divorce was duly 3 granted to the said Abram G. Simmons against the plaintiff by the Supreme Court of the State of Rhode Island.

IV. And previously thereto and on or about the day of September, 1887, the said plaintiff and Abram G. Simmons, agreed together to live separate and apart, and the plaintiff was paid $5,000 in consideration of said agreement.

The plaintiff then moved for an order: First, that paragraphs III. and IV. be struck out as redundant, and in the event of 4 such application being denied, then, second, for an order that the allegations of said paragraphs and each of them be made so definite and certain as to make the precise meaning and application thereof apparent; and third, for leave to reply or demur to the matters or any of them set forth in said two paragraphs or either of them.

This motion was made more than twenty days after answer served.

Simmons v. Simmons, 21 Abb. N. C., 469.

ANDREWS, J. It is entirely clear that neither paragraph III. 5 nor paragraph IV. of the answer, as pleaded, sets up a complete defence to the cause of action contained in the complaint.

Section 508 of the Code authorizes a partial defence to be pleaded, but provides that "it must be expressly stated to be a partial defence," and if either or each paragraph was intended as a partial defence, the pleader has not complied with the provisions of said section.* If it was intended in said paragraphs to plead facts which would go in mitigation of damages, it should have been so stated.

Under these circumstances, I think the plaintiff is entitled to an order requiring the defendant to make the allegations of said paragraphs more definite and certain, so that it will clearly appear whether such paragraphs are intended as defences or partial defences or as matter in mitigation of damages.

The order may provide that if an amended answer is not served within ten days, such paragraphs shall be stricken out; also that if the matter contained in said paragraphs is pleaded as defences or partial defences, plaintiff may demur within twenty days.

As such defences or partial defences would not constitute counterclaims, and as a reply to new matter in an answer, not constituting a counterclaim, cannot be directed under section 516 of the Code, upon the plaintiff's application, the order will not authorize plaintiffs to reply.t

The motion was not made within the twenty days prescribed by rule 22, and no costs will be granted to either party. The order will be settled on notice.

* See Thompson v. Halbert, p. 500 of this vol.

+ Section 516 provides that where an answer contains new matter, corstituting a defence by way of avoidance, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter. In that case, the reply and the proceedings upon failure to reply, are subject to the same rules as in the case of a counterclaim.

Supreme Court Rule 22: Motions to strike out of any pleading, matter alleged to be irrelevant, redundant or scandalous, and motions to correct a pleading on the ground of its being “so indefinite or uncertain, that the precise meaning or application is not apparent," must be noticed before demurring or answering the pleading, and within twenty days from the service thereof.

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