Effect of the order - Denial as a defense.

Scott, 840; Aspinal v. Smith, 8 Taunt. 592; S. C., 2 Moore, 655; Schenck v. McKie, 4 How. 246.

The granting of an order, extending the time to answer, affects the rights of the defendant to remedies, to which he would have been otherwise entitled. Thus, an order extending time to answer supersedes a prior motion noticed to strike out portions of the complaint, where there is no reservation in the order of the right to make such a motion. Marry v. James, 34 How. 238; Bowman v. Sheldon, 5 Sandf. 657; S. C., 10 N. Y. Leg. Obs. 339. So, if the defendant obtains an extension of time to answer, he waives an irregularity in the complaint, arising from a variance between the summons and complaint. Garrison v. Carr, 34 How. 187; S. C., 3 Abb. N. S. 266. It also waives all objection to a complaint, arising from an improper amendment. Hollister v. Livingston, 9 How. 140.

The defendant may, however, save his rights by inserting in the stipulation, or order extending the time, a clause authorizing him "to make such application as he shall be advised." Lackey v. Vanderbilt, 10 How. 155.

But, as the pleadings are in no way connected with any provisional remedy granted in an action, obtaining an extension of time to answer a complaint will not have the effect to waive the objections of the defendant, to the legality of an arrest obtained in the action. Columbian Ins. Co. v. Force, 8 How. 353. See Corwin v. Freeland, 6 N. Y. (2 Seld.) 560.

ARTICLE II.

DENIAL AS A DEFENSE.

Section 1. What may be denied.

a. In general. The requisites of an answer under the Code are (1) 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. (2) A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition. Code, § 149.

The section of the Code above cited authorizes a denial of such allegations only as are material, and impliedly prohibits a denial of such as are immaterial.

What may and may not be denied.

But the authority to deny material allegations is not confined to such as are directly alleged, but extends to such also as are impliedly averred. Prindle v. Caruthers, 15 N. Y. (1 Smith) 425; Bellinger v. Craigue, 31 Barb. 534; Haight v. Holley, 3 Wend. 258, 263; Chambers v. Jones, 11 East, 406; Marston v. Allen, 8 Mees. & Welsb. 494.

A denial of a material fact impliedly alleged is not only a proper averment in an answer, but is indispensable if it is desired to put such fact in issue. If the fact is so alleged as to amount in effect to an express averment, and is undenied by the answer, it will, on the trial, be deemed admitted. Anable v. Steam Engine Co., 16 Abb. 286; S. C. affirmed, 25 N. Y. (11 Smith) 470. Section 2. What may not be denied.

a. In general. Under the system of pleading introduced by the Code, only those allegations in a complaint are deemed material, which the plaintiff must prove upon the trial in order to maintain his action. It is upon these only that an issue can properly be taken, and it is of these only that the truth is admitted by an omission of a specific denial in the answer. It is a general rule, that no denial of an immaterial allegation is ever necessary or proper, however explicitly it may be averred in the complaint. Fry v. Bennett, 5 Sandf. 54; S. C., 1 Code R. N. S. 238; 9 N. Y. Leg. Obs. 330.

Thus, where it is unnecessary to aver or prove a demand, and the complaint, nevertheless, contains an allegation that such demand was made, no denial of this allegation is necessary or proper. Fairchild v. Ogdensburgh, Clayton and Rome R. R. Co., 15 N. Y. (1 Smith) 337.

So, where the complaint unnecessarily alleges an offer on the part of the plaintiff, this allegation is not the subject of denial. Wallis v. Warren, 4 Exch. 361.

It often occurs that averments of facts which the law will imply are improperly introduced into the complaint and are as improperly made the subject of denial in the answer. A common illustration of this mistake in pleading is to be found in the pleadings in actions brought for the publication of an article which is libelous upon its face. It is a well-settled rule of pleading that, in such an action, it is never necessary to insert in the complaint an allegation of malicious intent; and that, if such allegation is so inserted, it cannot be made the subject of a denial in the answer, as the court is bound in such case to infer malice, whether

Allegations of time, place, value, etc.

alleged in the complaint or not. Fry v. Bennett, 5 Sandf. 54; S. C., 1 Code R. N. S. 238; 9 N. Y. Leg. Obs. 330.

To test the necessity or appropriateness of a denial of any allegation in a complaint, the pleader should determine whether the fact alleged could properly be submitted to a jury upon the trial. If the fact is one that a jury has no right to determine, it cannot be put in issue by the pleadings. Ib.

An averment of the belief of the plaintiff, in relation to any fact, is never the subject of denial. An answer may properly deny the existence of a fact, but it cannot deny the belief of the plaintiff that such fact exists. Patterson v. Caldwell, 1 Metc. (Ky.) 489; Walters v. Chinn, id. 499; Radway v. Mather, 5 Sandf. 654.

Matters of inducement averred in a complaint form no part of the cause of action, and are not the subject of denial. An answer, containing only denials of matters of inducement, is frivolous, and gives the plaintiff an immediate right to judgment. Fry v. Bennett, 5 Sandf. 54; S. C., 1 Code R. N. S. 238; 9 N. Y. Leg. Obs. 330.

b. Allegations of time, place, value, etc. In most instances, allegations of time, place, value, etc., are not essential to the cause of action, and should not be denied in the answer. An answer, consisting wholly of denials of such allegations, is clearly frivolous, except when the question of time, place, or value are of the substance of the issue. Livingston v. Hammer, 7 Bosw. 670; Davison v. Powell, 16 How. 467; Connoss v. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 id. 13; McKensie v. Farrell, 4 Bosw. 192; Woodruff v. Cook, 25 Barb. 505.

Thus, in an action in the nature of trover, it is not necessary that the defendant should deny the value of the property, and his omission to do so does not operate as an admission of the value alleged in the complaint. He may prove the true value of the property on the trial, whether the value, as alleged in the complaint, is denied by him or not. Connoss v. Meir, 2 E. D. Smith, 314. So, in an action for goods sold, or for services rendered, a denial that the items of the account mentioned in the complaint were sold and delivered by the plaintiff to the defendant at the times therein set forth; or, that the work was performed or services rendered at the times therein specified, is frivolous. Gregory v. Wright, 11 Abb. 417.

But the value of the goods sold, or of services rendered, are VOL. II. - 53

Matter in aggravation of damages - Conclusions of law.

material allegations in an action for its recovery, and may properly be made the subject of denial. Ib.

c. Damages. In an action to recover unliquidated damages the amount of damage is not traversable. It must always be proved, whether denied or not. Hackett v. Richards, 3 E. D. · Smith, 13 (31); Connoss v. Meir, 2 E. D. Smith, 314; Raymond v. Traffarn, 12 Abb. 52.

d. Matter in aggravation of damages. Matters set forth in a complaint, merely in aggravation of damages, and not essential to the plaintiff's right of recovery, are not traversable, and an answer, containing only denials of such matters, is frivolous. Gilbert v. Rounds, 14 How. 46; Lane v. Gilbert, 9 id. 150; Foland v. Johnson, 16 Abb. 235; Saltus v. Kipp, 5 Duer, 646; S. C., 2 Abb. 382; 12 How. 342; Maretzek v. Cauldwell, 2 Rob. 715; S. C., 19 Abb. 35.

Thus, in an action for an assault, an answer, admitting the assault, but denying that it was of the nature or extent stated in the complaint, presents no issues to be tried and entitles the plaintiff to immediate judgment. Schnaderbeck v. Worth, 8 Abb. 37.

e. Conclusions of law. It is a general rule of pleading that facts only can be made the subject of an issue, and that a denial of a conclusion of law is inadmissible. McKyring v. Bull, 16 N. Y. (2 Smith) 297 (303); Marsh v. Elsworth, 36 How. 532; S. C., 1 Sweeny, 52; Fosdick v. Groff, 22 How. 158; Drake v. Cockroft, 10 id. 377; S. C., 1 Abb. 203; 4 E. D. Smith, 34; Brown v. Ryckman, 12 How. 313.

But this rule admits of some exceptions. Where a conclusion of law is pleaded as a fact, and is unsupported by any allegations of fact, from which the conclusion may be deduced, the defendant may treat the allegation as a fact and take issue thereon. Quin v. Lloyd, 41 N. Y. (2 Hand) 349; Morrow v. Cougan, 3 Abb. 328; Anonymous, 2 Code R. 67. Thus, where the complaint alleges an amount of indebtedness of the defendant to the plaintiff, for services performed, without stating the value of such services, or their extent, but claims that the indebtedness is for the balance remaining due, after sundry payments made by the defendant, a denial of all the allegations in the complaint, as to the employment and indebtedness, is proper and necessary, and puts in issue every fact upon which the cause of action depends. Quin v. Lloyd, 41 N. Y. (2 Hand) 349.

How facts must be denied.

But if the complaint had alleged that the plaintiff entered into the employment of the defendant on a particular day, and continued there, in doing labor and service for him, to a specified and fixed date, and then averred that such work and services were worth a specified sum, and concluded with the pleader's legal conclusions as to the indebtedness of the defendant, on the facts stated, a denial, going merely to the conclusion of law, without controverting any fact from which such conclusion was deduced, would be inadmissible in an answer, and insufficient to put in issue any fact alleged. See McKyring v. Bull, 16 N. Y. (2 Smith) 297.

Section 3. How facts must be denied.

a. In general. The Code provides that the answer of the defendant may contain a general or a 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, & 149.

The Code thus authorizes either of three forms of a denial of the allegations of a complaint. The two first are direct denials of some or all of the allegations in complaint; the last is not a denial of any fact alleged, but is a mere denial of any knowledge or information as to the alleged facts sufficient to form a belief in respect to their existence or non-existence. The first two forms of denial are direct defenses; the latter is a mere statutory defense. That a defendant has no knowledge or information sufficient to form a belief whether the allegations of a complaint are true, is of no consequence as an abstract proposition, and, of itself, is no defense; but the statute has permitted the defendant to put any or all of the material allegations of a complaint in issue by this form of pleading, and has declared that, for the purposes of a pleading, a denial in this form shall be deemed a sufficient defense to require the plaintiff to prove his case. See Flood v. Reynolds, 13 How. 112; Townsend v. Platt, 3 Abb. 325; Livingston v. Hammer, 7 Bosw. 670; Leach v. Boynton, 3 Abb. 1.

An answer controverting the allegation of a complaint may deny, generally, each and every allegation, or may specifically deny all, or one or more of such allegations.

b. General denial. A defendant may take issue on every fact alleged in a complaint without setting forth in his answer, in a negative form, the allegations so denied. A single clause is suf