Butcher v. Consolidated Trust Co.

Barrett, J.:

I concur in the conclusion here arrived at by Justice Ingraham. Tile answer contains a general denial, followed by separate statements of new matter, constituting, one a defense, and one a counterclaim. Part of this new matter cannot be taken out of either of the separate paragraphs of the answer and used, independently, as an admission. The plaintiff must accept or reject the entire paragraph. This rule as to the effect of such pleading is entirely well settled.. The plaintiff here was, therefore, required to prove every material allegation of his complaint. If he relied upon the affirmative allegations of new matter separately set out in the answer, he had to take them in their entirety, which of course would have been fatal to him. Under its general denial, the defendant had a right to question the authority of the plaintiff’s officers to purchase the goods in question, quite as much as to question the agreed price or value.

As the plaintiff did not put in evidence or otherwise adopt .the defendant’s second and third separate defenses, there was no admission of any allegation contained in his complaint; and if he had adopted these separate defenses,^or either of them, it would have been an adoption of a good defense or a good counterclaim. In this view, there was no proof of any of the material allegations of the complaint, and consequently the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed and new trial granted, with costs to appellant to abide event.