von Hagen v. Waterbury Manufacturing Co.
New York Supreme Court
Motion to strike out allegations pleaded as a defence. The complaint alleges the breach of a contract by the defendant to sell and deliver to the plaintiff certain specified merchandise, and prays for damages.
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Motion to strike out allegations pleaded as a defence. The complaint alleges the breach of a contract by the defendant to sell and deliver to the plaintiff certain specified merchandise, and prays for damages. The answer contains in substance a general denial, and then pleads as a “ defence ” that one Jacob von Hagen asked the defendant to manufacture and deliver to him the said merchandise; that the defendant informed him that it would not make the contract without a deposit of $300 being made; that such deposit was not made by the said Jacob von Hagen, and the defendant did not manufacture…
1Opinion of the Court
Gaynor J.:
This is one of those answers which so often bother trial judges. The so-called “ defence ” is no defence. - A defence can only consist of new matter, viz., "fact's outside of the issue raised by a general or special denial (Code Civ. Pro. sec. 500). First come denials in an answer, and then defences if there be any. The distinction between them is shown in the rule that while a “ defence ” may be stricken out as sham, a denial may not be (Wayland v. Tysen, 45 N. Y. 281). Mothing may be pleaded as a defence which may be proved under a denial (Flack v. O’Brien, 19 Misc. Rep. 399;…
2Cases cited4 opinions
- Wayland v. . TysenNew York Court of Appeals · 1871
- Flack v. O'BrienNew York Supreme Court · 1897
- McManus v. Western Assurance Co.New York Supreme Court · 1898
- Green v. BrownNew York Supreme Court · 1898
3Cited by6 opinions
- Cruikshank v. Press Publishing Co.New York Supreme Court · 1900
- Dennin v. PowersNew York Supreme Court · 1916
- Kelly v. SammisNew York Supreme Court · 1898
- Mitnacht v. HawthorneNew York Supreme Court · 1900
- Meurer v. BrinkmanNew York Supreme Court · 1898
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