Judges： Scott
Filed Date： 7/8/1908
Status： Precedential
Modified Date： 11/12/2024
The defendant appeals from an order striking out portions of"the answer. The action is for labor and services, alleged to have been performed at defendant’s request, in painting a miniature portrait, which services are said to have been reasonably worth and for which the defendant agreed to pay the sum of $800. The answer is by no means a model of pleading. For a first defense it sets up a qualified denial by denying each and every allegation, except that defendant admits the delivery of a portrait, painted under a special contract, but denies that it was a good, true and fair likeness, and alleges that for that reason it was returned to plaintiff. The qualification of the denial was stricken out, While it is undoubtedly true that a qualified denial may be proven Under a general denial, we do not consider that the defendant should be restricted to a general denial which will, in form at least, place her in the position of denying matters which are not open to denial. We think, therefore, that so much of the order- appealed from as Strikes out the qualified denial in the first separate defense was erroneous.
Paragraphs 4 and 5 of the second separate defense contain nothing more than allegations of evidence, and add nothing to the separate defense contained in paragraphs 2 and 3. Paragraph 1 is clearly irrelevant and was also properly stricken out. By paragraph ■ 6 the defendant has apparently undertaken to. set up the defense of a prior adjudication. It has no relation to and no proper place in the second separate defense, and if defendant desires to rely upon it she should set it up as a separate defense connecting it by proper allegations with the subject-matter of the present action;
The order appealed from will, therefore, be modified- by striking
■ Ingraham, McLaughlin, Laughlin and Houghton, ' JJ., concurred. .
•Order modified as directed in opinion, and as modified affirmed, without costs.