HAMMOND v. EARLE

HAMMOND v. EARLE. N. Y. Supreme Court, First Department; Special Term and Chambers, September, 1878. Again, November, 1878. Answer. — Making More Definite and Certain. — Pleading.— Code of Crv. Pro. § 546. It is not essential that a motion to mate a pleading more definite and certain, be made at the earliest possible moment, but where the time “ to plead, or otherwise move,” has been extended, it may be made at any time before the expiration of such extension. An answer, which “denies each and every material allegation” in the complaint, “contrary to or inconsistent with any of the allegations in the foregoing answers, not heretofore admitted, ignored, or denied, ” is too indefinite. The plaintiff, as well as the court, is entitled to know what allegations of his complaint are denied ; and he cannot be compelled to run the risk of different interpretations of language which would in the one case result in an admission, and in the other in a denial. Motion, by plaintiff to compel defendant to make a defense more definite and certain. This was an action by William A. Hammond against William P. Earle and Elmore P. Boss, for an injunction to stay the sale under foreclosure of certain premises in the city of New York ; for specific performance of a contract; that a mortgage be adjudged no longer a lien on said premises ; and for damages for breach of contract. The fifth defense in the amended answer of the defendant Earle was as follow's : “And this defendant as and for a separate answer and fifth defense to the action of the plaintiff herein, on information and belief, denies each and every material allegation in said amended complaint, contrary to or inconsistent with any of the allegations in the foregoing answers, not heretofore admitted, ignored or denied.” The plaintiff’s attorney obtained an order from Daniels, J., granting plaintiff “twenty days further and additional time to plead to or otherwise move in respect to said Earle’s answer.” Thereafter the plaintiff made this motion, under section 546 of the Code of Civil Procedure, to compel the said defendant Earle to make this fifth defense more definite and certain. Chauncey B. Ripley, for the motion. I. The answer in question is indefinite and uncertain, as appears upon the face of it, in that it affords the plaintiff no means of determining, with any degree of precision, what allegations of the complaint are denied. II. A denial in an answer should be so expressed by its words, that any person of intelligence can determine, with accuracy, what allegations of the complaint are intended to be denied (Mattison v. Smith, 19 Abb. Pr. 288 ; Seward v. Miller, 6 How. Pr. 312 ; Code of Civ. Pro. § 546). III. As to laches, see order of Daniels, J., giving twenty days additional time to plead or otherwise move; and Lackey v. Yanderbilt, 10 How. Pr. 155. John M. Martin, opposed. Van Brunt, J. — The time to make this motion was extended by Judge Daniels’ order so that it was made in time. The fifth defense seems to me entirely too indefinite ; it is wholly bad for a reason which has not been raised upon this motion, and which therefore it is not necessary for me to discuss. The plaintiff is entitled to know what allegations of his complaint are denied, and the court is entitled to the same information. The plaintiff can not be compelled to run the risk of different interpretations of language which would in the one case result in an admission and in the other in' a denial. Rule 19 of the court requires a memorandum upon the pleadings submitted to the court to note wthat parts of the complaint are admitted, &c. To make the pleader comply with this rule, the denials must be specific, certain and definite. To deny on information and belief every material allegation of the complaint contrary to or inconsistent with any of the allegations of an answer not therein before admitted, ignored or denied, is a denial which may deny everything or nothing. Where the pleader claims to have ignored, no one can know but himself. Clearly, such a denial is too indefinite to be allowed to stand. Motion granted, with ten dollars cost to’abide the event. II. November, 1878. Motion to make amended answer more definite and certain.. ’ Defendant served an amended answer, the material part of which read as follows : “ 5th Defense. And this defendant further answering denies each and every material allegation in said amended complaint not hereinbefore specifically admitted or denied.” The plaintiff then made this motion, as stated in the notice of motion, that the said fifth defence “be made more definite and certain so as to show precisely what allegations of the amended complaint are denied by said fifth defense or answer, as the practice requires, and the said amended answer be ordered amended further accordingly.” The grounds thereof were, that the answer was indefinite and uncertain in that it did not disclose which allegations in the complaint were denied; that it was evasive and wanting in precision as to which allegations were regarded as material, and as to what the standard of materiality was in the mind of the defendant pleading; also that the fifth defense was rendered especially indefinite and uncertain when considered in connection -with other portions of the same pleading. Chauncey B. Ripley, for motion. I. A denial, in the language of the statute, of each and every material allegation of the complaint, is evasive and obnoxious to a motion that it be made more definite and certain. (Mattison v. Smith, 19 Abb. Pr. 288; Seward v. Miller, 6 How. Pr. 312; Code of Civil Procedure, § 546; Rule 19 Supreme Court, p. 65). The determination of the question of materiality involves abstract principles, and in answering it a great diversity of views might be developed alike by the parties and the court. II. Since much of the matter contained in the answer can in no sense be regarded either as specific admissions or specific denials, the answer must be held grossly complicated, indefinite and uncertain in the use of the language employed, if we expunge from it the qualifying word “material.” It is too complicated for the court or counsel to interpret, and the proper remedy is by motion to make more definite (Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 431, 437). In condemnation of this mode of pleading, see Pomeroy's Remedies and Remedial Rights, § 635, and Rule 19, supra. John M. Martin, opposed. I. By section 519 of Code of Civil Procedure the allegations of a pleading must be liberally construed. The allegation in the answer is a form of denial permitted by section 500- of the Code of Civil Procedure, whether liberally or strictly construed, and in the present case a liberal construction should be given to the answer with a view to substantial justice between the parties. II. This form of answer is almost universally used by the profession, and has been recognized by court and counsel as sufficient and proper in numerous cases, of which the following are only a few: Walsh v. Mehrback, 5 Hun, 448; Allis v. Leonard, 46 N. Y. 688; Thompson v. Erie R. R. Co., 45 Id. 468; Merchant’s Nat. Bank v. Macnaughton, 1 Abb. New Cas. 293, note. And in the following cases, it has been directly held to be good under the old code, the language of which does not materially differ from that of the new one: Genesee Mut. Ins. Co. v. Moynihen, 5 How Pr. 321; Parshall v. Tillou, 13 Id. 7; Gassett v. Crocker, 9 Abb. Pr. 39. III. There is nothing indefinite in the answer. It points out specifically what allegations in the amended complaint are denied, to wit: Each and every one not before specifically admitted or denied.” IV. The former answer held to be bad by Van Brunt, J., differs materially from the one now before the court. In that the denial was on information and belief, which was a fatal defect (Therasson v. McSpedon, 2 Hilt. 1; Powers v. Rome, &c. R. R. Co., 5 Sup’m Ct. [T. & C.] 449). It was also defective in denying what had been ignored, and it is submitted that that decision is inapplicable, and has no force here. [MAJORITY — Lawrence, J.] Lawrence, J. The motion to make the answer more definite and certain, as stated in the notice of motion, is granted, with costs to abide the event (See Mattison v. Smith, 19 Abb. Pr. 288; Old Code, § 149; New Code, § 500; MSS. opinion of Van Brunt, J., in this case). Ante, p. 107.