Hurley v. Roberts , 102 N.Y.S. 963 ( 1907 )

Gaynor, J.:

The complaint alleges that the defendant agreed to 'deliver to the plaintiff 800,000 bricks in the city of Troy on or before May 12, 1906, but that he failed to deliver 144,250 thereof, to the plaintiff’s damage $288. A second cause- of action is that the plaintiff overpaid the defendant $190.50 on the contract.

Instead of meeting the complaint with a denial or denials, as the simple rules of pleading require (Code Civ. Pro: sec.-500), so that the issue could be readily seen, the answer ii a long statement of facts, which has to be compared critically and patiently with the complaint to ascertain in what particular, if any, it differs therefrom. Hear the end. of"the answer to the first canse of action the defendant “denies each and every statement” (meaning allegation) “contained in the first cause of action set forth in the complaint ” (as though it could he set forth anywhere else) “ not herein specifically admitted or denied,” and there is. a similar denial to the second cause. These are the only denials, except of any damage^ or suni owing. The defendant’s attorney evidently regards every alleg'a- . tion of fact .which differs with the allegations of the complaint as a ■“specific-” denial, and throws upon the court the work of picking out such allegations, pen in hand. The learned judge below must have been in -much doubt, in respect of what issues the defendant understands are to be .tried and intends to try, and of course.lie could not see whether- proposed witnesses were material without understanding this. In addition to this there is a so-called counterclaim which is not Complete in itself, and is no counterclaim, which the defendant’s list of witnesses or some of them are to be called tc prove. As the defendant can serve their convenience by leaving them at home, the venue does not need to be changed on their account. ' . . .

The order should be affirmed.

Jenks and Hiller, JJ., concurred; Hirschberg, P. J., and' Rich, J., concurred in result. . .

Order affirmed, with ten dollars costs and disbursements.