Opinion
March, 1903.
Kelly Hoeninghaus (J. Allison Kelly, of counsel), for demurrer.
De Forest Brothers (Robert Thorne, of counsel), opposed.
Demurrer by plaintiff to affirmative defenses in defendant's answer. The complaint sets forth a cause of action for the loss by defendant, a common carrier, of plaintiff's baggage delivered to defendant after notice of the nature and value thereof and its purpose and necessity to plaintiff upon his journey, and defendant accepted and agreed to safely carry and deliver it, which it failed to do. The answer contains two affirmative defenses, which are demurred to, to the following effect: First, that the ticket sold to plaintiff, if any, and upon which, if at all, plaintiff's baggage was received, contained an express condition limiting the defendant's liability, and that notices to the same effect were posted in defendant's baggage office, and that plaintiff's baggage was received by it, if at all, upon such limitation; and the second is to the effect that the law of New Jersey governs the contract, if any, and that by virtue of such law defendant's liability was limited. These affirmative defenses are in the nature of pleas in confession and avoidance. They, however, fail to confess anything. The allegations which should be admissions are hypothetical in their nature. Great pains have been taken to avoid confessing anything. Whenever a positive allegation is made it is immediately followed by "if," and its effect as a confession or admission is nullified. The pleadings of these defenses are bad, and the demurrer should be sustained because thereof. Conger v. Johnston, 2 Den. 96; Goodman v. Robb, 41 Hun, 605. 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 this demurrer be taken as true. In view of these admissions, the defenses become ineffective to avoid liability. I cannot take into consideration allegations of denial formerly in the answer, but now eliminated. I must consider the pleadings as they are now presented to the court. If the defendant felt aggrieved by reason of some former decision, it had its remedy by appeal. It should not now complain of it, after abiding by it. Defendant should have an opportunity to plead properly, and the demurrer will be sustained, with costs, with leave to plead anew upon payment of such costs.
Demurrer sustained, with costs, with leave to plead anew upon payment of costs.