Leonorovitz v. Ott
New York Supreme Court
Trial of an issue of law raised by a demurrer to matter pleaded as an affirmative defense to the complaint. The complaint is that the defendant knowingly kept a vicious dog, and allowed it to be at large, and that it bit the plaintiff.
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Trial of an issue of law raised by a demurrer to matter pleaded as an affirmative defense to the complaint. The complaint is that the defendant knowingly kept a vicious dog, and allowed it to be at large, and that it bit the plaintiff. After what purport to be denials, comes the following, pleaded as a defence, in the answer: “ That at the time and place mentioned in the complaint the plaintiff was a trespasser, and unlawfully upon the premises of ■the defendant, and that whatever damages or injuries she sustained, if any, were the result of the wrongful, negligent and unlawful act of…
1Opinion of the Court
Gaynor, J.:
The decision in Saleeby v. Central R. Co., 40 Misc. Rep. 269, is cited, in which it is said: “ I think the affirmative defenses are further faultily pleaded in that they fail to contain any sufficient denial of the allegations of the complaint, which, under such conditions, must, for the purpose of the demurrer, he taken as true.” This is so strange that I must regard it as in some way a mistake of the editor or printer. Denials of allegations of the complaint cannot be a part of a defence. If put there they would be struck out on motion. A defence can consist only of “ new matter…
2Cases cited3 opinions
- Burkert v. BennettNew York Supreme Court · 1901
- Kelly v. TiltonNew York Court of Appeals · 1866
- Saleeby v. Central Railroad of New JerseyNew York Supreme Court · 1903