App. Div.]

First Department, October, 1913.

defense of new matter is based upon the theory of confession and avoidance.

Thus, where in an action for alienation of affections the defendant alleges as a separate defense that the plaintiff's husband was of unsound mind at the time of the marriage and was subsequently committed to an insane asylum, a denial of the allegations of the complaint should be stricken out.

A denial has no place in the affirmative defense except when it becomes necessary to deny the existence of some fact alleged in the complaint in order to perfect the answer as a complete affirmative defense.

APPEAL by the plaintiff, Manuela N. Einstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of September, 1913, denying plaintiff's motion to strike from the separate defense contained in the answer certain denials of allegations of the complaint on the ground that the same were irrelevant and redundant.

Jacob H. Corn, for the appellant.

James B. Kilburn, for the respondent.

MCLAUGHLIN, J.:

Action to recover damages for alleged alienation of the affections of Arthur Einstein, plaintiff's husband.

The answer alleges: "I. On information and belief defendant denies the allegations contained in paragraph Fourth of said complaint that he at all times or at any times exercised and exerted an influence and control over the mind of Arthur Einstein.

"II. On information and belief defendant denies the allegations contained in paragraphs Fifth, Sixth and Seventh of said complaint."

For a separate defense the "defendant repeats the allegations of paragraphs I and II of this answer as though herein again alleged," and then sets forth certain facts to the effect that at or about the time defendant first learned of the marriage between plaintiff and Arthur Einstein the latter was and for some time prior thereto had been, and had since continued to be, of unsound mind, in consequence of which he was, by order of the court, committed to an institution for the care and treatment of the insane.

First Department, October, 1913.

[Vol. 158.

The plaintiff moved to strike from the separate defense the denials of the paragraphs of the complaint above quoted. The motion was denied and she appeals.

Section 500 of the Code of Civil Procedure provides that an answer must contain (1) a general or specific denial of each material allegation of the complaint controverted by the defendant; and (2) a statement of any new matter constituting a defense or counterclaim.

The separate defense here set up is the statement of new matter and a denial of the allegations of the complaint has no place therein. A defense of new matter as contemplated in the section is based on the theory of confession and avoidance; i. e., that even conceding the truth of the allegations of the complaint, the establishment of the new matter set forth prevents a recovery. The new matter pleaded must be such as could not be proved under the denials. If it could, then it is not new matter, but belongs under a denial which is negative. The denials contained in the answer enable defendant to controvert the facts upon which the plaintiff bases her right to recover. The only effect of incorporating such denials in the affirmative defense is to prevent the plaintiff, in advance of the trial, testing the sufficiency thereof. A denial has no place in an affirmative defense except when it becomes necessary to deny the existence of some fact alleged in the complaint in order to perfect the answer as a complete affirmative defense. (Stroock Plush Co. v. Talcott, 129 App. Div. 14; Rochkind v. Perlman, 123 id. 808; Stern v. Marcuse, 119 id. 478; Frank v. Miller, 116 id. 855; Waltham Mfg. Co. v. Brady, 67 id. 102; Stieffel v. Tolhurst, 55 id. 532; Mendelson v. Margulies, 157 id. 666.)

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

INGRAHAM, P. J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

App. Div.]

First Department, October, 1913.

MANUELA N. EINSTEIN, Appellant, V. JULIUS EINSTEIN,

Respondent.

First Department, October 24, 1913.

See headnote in Einstein v. Einstein (ante, p. 498).

APPEAL by the plaintiff, Manuela N. Einstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of September, 1913, denying plaintiff's motion to strike from the separate defense contained in the answer certain denials of allegations of the complaint on the ground that the same were irrelevant and redundant.

Jacob H. Corn, for the appellant.

James B. Kilburn, for the respondent.

MCLAUGHLIN, J.:

This appeal is from an order denying a motion to strike out, as irrelevant and redundant, certain allegations of the complaint set forth in an affirmative defense.

The question presented is precisely similar to the one considered in an action by this plaintiff against Monroe Einstein, decided herewith. For the reasons stated in the opinion in that case (158 App. Div. 498) the order here appealed from is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

INGRAHAM, P. J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

First Department, October, 1913.

[Vol. 158.

HARRY VANTA and LOUIS VANTA, Respondents, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY, Appellant.

First Department, October 24, 1913.

-

Pleading - reply — action on insurance policy — breach of warranty bill of particulars.

A plaintiff suing on a policy of burglary insurance should be directed by the court to reply to a defense setting up a breach of warranty as to previous applications and the cancellation of previous policies issued to him, and also to a defense alleging a breach of warranty with respect to the required burglar alarm system and maintenance thereof. The defendant should not be required to furnish a bill of particulars respecting the facts set up in the defenses.

APPEAL by the defendant, Massachusetts Bonding and Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of September, 1913, denying defendant's motion to require plaintiffs to reply to the second separate defense set up in the answer, and also requiring the defendant to furnish plaintiffs with a bill of particulars before the plaintiffs will be required to reply to the first separate defense set up in the answer.

Joseph L. Prager, for the appellant.

Philip J. Dunn, for the respondents.

PER CURIAM:

This action is to recover $2,000 for alleged loss by burglary under a policy of insurance issued by the defendant to the plaintiffs. The first defense sets up a breach of warranty with respect to a previous application and declination of insurance, and previous cancellation of a burglary insurance policy issued to the plaintiffs prior to the issuance of the policy alleged in the complaint. The second defense alleges a breach of warranty with respect to a required burglar alarm system and maintenance thereof.

The learned court should have granted the motion and directed the plaintiffs to reply to each of these defenses. The

App. Div.]

First Department, October, 1913.

defendant should not have been required to furnish a bill of particulars respecting the facts set up in the first defense.

The order appealed from should, therefore, be reversed with ten dollars costs and disbursements, and the motion requiring a reply to each of the defenses granted.

Present- INGRAHAM, P. J., MCLAUGHLIN, LAUGHLIN, CLARKE and SCOTT, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted.

ROBERT HERBST, Respondent, v. KEYSTONE DRILLER COMPANY,

Witness

Appellant.

First Department, October 24, 1913.

interrogatories for examination of foreign witness production of documents - order modifying.

Action for libel. A commission issued for the examination of a witness in a foreign country was amended so as to require him to produce all communications between the defendant's agent and their foreign representative. These letters were numerous, personal and extensive, covering many matters not related to the issues in the action. Held, that the order should be modified by requiring the witness to attach copies of such parts of said communications as referred to the issues involved and requiring him to produce at trial the complete communications or copies thereof for submission to the trial judge.

APPEAL by the defendant, Keystone Driller Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of June, 1913, resettling a prior order entered in said clerk's office on the 19th day of May, 1913, as disallows and amends certain interrogatories and cross interrogatories attached to a commission to examine witnesses in a foreign country.

Cornelius P. Kitchel and Harry D. Nims, for the appellant.

Alfred H. Townley of counsel [Hoadly, Lauterbach & Johnson, attorneys], for the respondent.