Durst v. Brooklyn Heights Railroad
New York Supreme Court
Demuebeb to a defence. The complaint alleges in the usual way that by certain specified acts of negligence by the defendant he was hurt while a passenger on one of its cars.
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Demuebeb to a defence. The complaint alleges in the usual way that by certain specified acts of negligence by the defendant he was hurt while a passenger on one of its cars. The answer is first a general denial and then as follows: “ For a separate and distinct answer and defence the defendant alleges upon information and belief: That whatever injuries or damage the plaintiff may have received or sustained at the time, and place mentioned in said complaint were received and sustained by reason of his own negligence or the negligence of a third person or persons over whom this defendant had no…
1Opinion of the Court
Gaynor, J.:
It may be.that this demurrer is rather captious, but the issue raised by it has to be decided. Pleadings are growing to be very unscientific and slovenly, and therefore difficult to be understood, and troublesome to trial judges. It is true that this so-called defence is not what is termed a “ defence ” (or an “ affirmative defence ” as we sometimes tautologically say) in pleading. A “ defence ” in pleading can consist only of “ new matter ”, i. e., matter which is not embraced within the issue raised, or which might be raised, by a denial, and cannot therefore be proved under a…
2Cases cited4 opinions
- Cruikshank v. Press Publishing Co.New York Supreme Court · 1900
- Cardeza v. OsbornNew York Supreme Court · 1900
- Fasnacht v. StehnNew York Supreme Court · 1869
- Wiley v. Village of Rouse's PointNew York Supreme Court · 1895
3Cited by11 opinions
- O'Neal v. Carolina Farm Supply of Johnston, Inc.Court of Appeals of South Carolina · 1983
- Carter v. Eighth Ward BankNew York Supreme Court · 1900
- Burkert v. BennettNew York Supreme Court · 1901
- Donovan v. MainAppellate Division of the Supreme Court of the State of New York · 1902
- Goldberg v. KirschsteinNew York Supreme Court · 1901
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