Curran v. Arp , 125 N.Y.S. 993 ( 1910 )

Hirsohbebg, P. J.:

. The appellant and Rudolph Arp are sued , jointly as copartners. The existence of the copartnership is alleged in the 3d paragraph of the complaint. The 4th, otli, 6th- and 7th paragraphs of the complaint allege.that the plaintiff was injured by being thrown to the ground and being dragged for a considerable distance- by reason of the negligence of the defendants in the conduct and management of a wagon -which was driven in their business at the time in the borough of Brooklyn. The answer which has been held by the learned County Court to be frivolous denies the existence of the copartnership, and further denies- “ any knowledge or information sufficient to form a belief as to the allegations contained- in Paragraphs .IV, V, VI and VII of said complaint.”

The granting of the order appealed from cannot be justified. The positive denial of the copartnership raised an issue bn an essential point, aside from the question of the sufficiency- of the denial of the paragraphs of the complaint which contain the allegations of' negligence. The order should, therefore, be reversed for this ground if for no other. , ' .

It is urged by the' respondent, however, that the denial ■ is bad as to the paragraphs charging negligence because it is conjunctive in form and, therefore, embodies a negative pregnant. I have been unable to find a case in this State which holds .that such a form of denial is bad. There are cases which hold that a denial- of knowledge or information sufficient to form a belief as: to all the allegations'-of a complaint, or as to all the allegations of certain paragraphs of a complaint, is bad because a litigant might make such a denial where there was a single allegation stated ■ of which . he had no knowledge. The denial in this case is essentially different. Moreover, the form of denial used in this case has often received the sanction of the courts and never, so far as I have been able to discover, .has it been condemned.

It was. held to be good a,t the Special Term in Fairbank Co. v. Blaut (67 N. Y. St. Repr. 583).

In Hoffman v. Susemihl (15 App. Div. 405) the court said (p. 407): “ A statement in an answer specifically denying a particular numbered paragraph of the complaint- is a good denial of that. paragraph.”

In Alexander v. Aronson (65 App. Div. 174) the- answer was in the following form : “ He denies any knowledge or information sufficient to form a belief as to the allegations of. Paragraphs ‘1,’ f II ’ and ‘III,’in said complaint contained.” The court said (p. 175): “ It is in form such as is authorized by subdivision 1 of section 500 of the Code which allows afdenial of ‘ any knowledge or information thereof sufficient to .form a belief,’ and thus ’as to these allegations of the complaint th'e general issue was raised.” The decision of the Appellate Division was unanimous.

In Hidden v. Godfrey (88 App. Div. 496) the denial was in precisely the same" form as in the case at bar. The answer of the defendant was in these words: “ Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs I, II, III, IV, V and VI (comprising all the essential paragraphs) of the complaint.” The court held unanimously in that case that there was not only a substantial but a reasonably strict compliance with section 50Ó" of the Code' of Civil Procedure. It said (p. 497): “As a denial in this form is equivalent to a general denial which puts in issue the allegations of the complaint at which it is directed, we do not think it can be declared frivolous.”

The form of denial in question was practically approved by the Court of Appeals in Electrical Accessories Co. v. Mittenthal (194 N. Y. 473). In that case the form used was: “ Denies each and every allegation contained in paragraphs V and VI of the plaintiff’s complaint herein.” The difference in the form is not controlling as a denial of the allegations, contained in a specified paragraph .is necessarily a denial of each and every allegation of the paragraph.

Assuming, however, that the form of the denial used is in violation of the Code of 'Civil Procedure, the pleading might be. demurrabie or subject- to correction ’ on motion, but it could not be held frivolous. It is only where’a- pleading is .void on its face or is obviously interposed in bad faith, that it may be held .to be frivo-.. ■Ions. A pleading maybe demurrable, but where there is argument and authority in support of it, it cannot be disregarded or stricken out as frivolous. (Byrne v. Hegeman, 24 App. Div. 152; Bedlow v. Stillwell, 45 id. 557; Rankin v. Bush, 93 id. 181; Shaw v. Feltman, 99 id. 514; Hildreth v. Mercantile Trust Co., 112 id. 916; Cook v. Warren, 88 N. Y 37.)

It will thus be seen that the form óf -denial used by the appellant in this case-has been approved in several instances where it has been attacked in court.. No case has been found in this Staté where the •form has received judicial condemnation, and its adoption in this . instance, therefore, cannot be held to be an act of frivolity.

' The order, should be reversed and the motion denied.

Woodward, J., concurred With Burr, J.; Thomas and Rich, JJ., concurred in the result. ' .

Búrr, J.:

In this action plaintiff moved for judgment on the answer as frivolous, and from' the order granting such motion defendant appeals.

The complaint alleges: “ That- the defendants now are, and at the times hereinafter mentioned were, engag-ed in a general grocery business as partners under the partnership .name of • H. F. Arp and Bro., in the County of Kings, State of New York,” This allegation is denied. If the existence of the copartnership were a material issue in this case tlib order granted herein could not be sus-. tained. I think that it is not. The succeeding, allegations are: ‘ That on or about the. 23rd day of December, 1905, there was driven or operated by the defendants, through their agents or' servants, * * * a certain wagon used as a grocery delivery wagon by the defendants in their business,” and “ That .* * * the defendants, through their agents and servants in charge and control of the ' management and operation of said wagon, “ * . *' carelessly and negligently allowed a certain rope to hang from some part of '.. said wagon and trail along the ground, which rope became entangled with the foot or feet of this plaintiff as she was crossing the street, whereby she was violently thrown to the ground and dragged for a considerable distance.” If the wagon was driven and operated by defendants’ agents, and defendants through their agents were guilty of the careless and negligent act complained of, it is entirely immaterial whether they were copartners or not. They were joint tort feasors, and. as such each was liable. The complaint contains seven paragraphs. So far as the remainder of the answer is concerned it is in this form; “ The defendant, Max F. Arp, answering the complaint of plaintiff: * * * 2. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs IY, V, VI and YII of said complaint.” The fact that this court is not unanimous as to the^validity of such form of denial is sufficient to protect the pleading from attack as frivolous, for the reasons stated in the opinion of the presiding justice. But I am not willing to give assent to. the proposition that the form of the. denial is a proper one. The statute provides that, the answer of defendant must contain “ A general or Specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” (Code Civ. Proc. § 500.) This denial is criticised as insufficient upon two grounds. The first ground is that dhe defendant does not deny that he has any knowledge or information sufficient to form a. belief. We fail to see why the stateinent, though differing in form from that prescribed in the Code, is' hot identical in meaning with it. The defendant is speaking of *nhe knowledge or information possessed by him,. He cannot be called upon to speak, nor supposed to be speaking, respecting the knowledge or information of another, and when he .denies any knowledge or information on the subject, it is equivalent to shying that he has- no such knowledge. (See Pom. Code Rem. § 613; Jones v. Ludlum, 74 N. Y. 61.)

The second ground of criticism is that defendant’s denial is in the conjunctive form, that is, of the allegations contained in the 4th, 5th, 6th and 7th paragraphs of this complaint. 1 think that, this denial is bad. There is no allegation of the complaint which is contained in all four of these paragraphs. Each contains some, but no allegation appears in all. There is in fact, therefore, no denial of any. Such a-denial is a conjunctive one, and its vice is similar in character to the vice known as a negative pregnant. (Pom. Code Bern. § 618; Electrical Accessories Co. v. Mittenthal, 194 N. Y. 473.) A denial of the material allegations of a complaint conjunctivelyis not a denial of the truth of each separately .considered. (Young v. Catlett, 6 Duer, 437; Collins v. North Side Publishing Co., 1 Misc. Rep. 211; affd., 3 id. 635 McClave v. Gibb, 11 id. 44; Stuber v. McEntee, 142 N. Y. 200; People ex rel. Gunst v. Goldstein, 37 App. Div. 550, 552.) The case first cited {Young v. Catlett) was decided by the General Term' of the Superior Court, in an opinion written by Judge Woodruff and concurred in- by Judges Boswo'rth and Dube. The very statement of the-names of the judges composing that court commands the most profound respect for its decisions. As'attest of this pleading, suppose that the pleader had said I deny that on a certain day a certain wagon was driven or operated by the defendants, through their, agents or servants, and that the defendants, through their agents and servants in charge and control of the management and operation of said wagon, carelessly and negligently allowed a certain rope to hang from sonie part of said wagon and trail on the ground, and ssid ■ rope became entangled with the plaintiff’s feet aiid she was violeritly thrown to the ground and dragged for a considerable distance,” it seems to me that the denial would be clearly bad. Every one of the statements might be true except that she was dragged for h considerable distance, aiid stiff the denial would be technically true. In none of the cases cited- in die opinion of the presiding justice was the question of a conjunctive denial considered. In Hidden v. Godfrey (88 App. Div. 496) the thought of the'court was directed to the question whether the denial of knowledge is equivalent . to the denial of any knowledge. So in. each of the other cases, the question considered by the coúrt related, 'not to the conjunctive character of the denial, but to other criticisms made upon the pleading. The distinction, as it seems to me, is clearly pointed out in the case of Electrical Accessories Co. v. Mittenthal (supra), where the denial was of “ each and every allegation contained in paragraphs Y and YI of the plaintiff's complaint.” That form óf denial separated the allegations, and the denial was addressed to' each separately. In this case no separate1 allegation is controverted,. but all are denied conjunctively. If the question had been raised by demurrer, I should feel clear that the order must be affirmed. As the pleading was attacked as frivolous, for the reason' previously ' stated, I think that the order must be reversed.

Woodward^ J., concurred.,

• Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.