Opinion
February, 1910.
Kahn Hegt (Jonas J. Hegt, of counsel), for appellant.
Quigg Coleman (Charles W. Coleman, of counsel), for respondent.
The action is for conversion of money received by the defendant, which the plaintiff claims was received by him in his capacity as vice-president of the plaintiff company. The plaintiff company alleges in its complaint that it entered into an agreement in writing with a third party, known as the Barnard Realty Company, to furnish certain labor and materials in connection with a steam heating plant, for which the said realty company agreed to pay the sum of $825. They allege that all the conditions of this agreement were duly performed on their part; that the said realty company paid to the defendant, on account of such contract, the sum of $625, and that the defendant has converted this sum to his own use. The answer, after denying all of the important allegations of the complaint, sets up as a single affirmative defense three paragraphs.
The first paragraph pleads facts inconsistent with one of the allegations of the complaint, and proof of which would be admissible under a denial thereof. A denial of an allegation may be included in an affirmative defense, the purely technical decisions and dicta to the contrary having been overruled. Douglass v. Phenix Ins. Co., 138 N.Y. 209, 215, 216; People ex rel. McEnroe v. Wells, 89 A.D. 89, 92; Haffen v. Tribune Association, 126 id. 675, 677; Devoe v. Lutz, 133 id. 356, 361. If this were not so, a party would sometimes be deprived of a valid defense because his adversary had inserted a misrepresentation in the complaint. In the present case, however, the denial is not necessary or relevant to the defense; nor is the pleading of inconsistent facts equivalent to a denial. Rodgers v. Clement, 162 N.Y. 422, 428. It would have been proper to strike out the paragraph, had defendant moved for that relief. Haffen v. Tribune Association, supra. It is to be disregarded.
The second paragraph sets forth that defendant has spent $626 in labor and materials necessary to the performance of the contract, and received but $625 on account thereof; and the third paragraph, that, " by reason thereof, even if the plaintiff had been entitled to receive the * * * $625 * * * said plaintiff has already been paid the same in full." The words "by reason thereof" show that the third paragraph is but the pleader's conclusion from the second, and that but one defense was intended or stated. The pleader's conclusion is incorrect, and the facts stated in the second paragraph make out a defense of recoupment, not payment. Plaintiff is not yet paid when its vice-president gets money to which its treasury is entitled. But, when it claims the benefit of a contract which its vice-president has in part executed at his own expense, it must pay him his reasonable advances thereon.
Hence the relief sought was properly denied, and the court could not grant the plaintiff any alternative relief, since it asked for none. But, as the answer was so improperly drawn, we do not think that costs should have been imposed in denying plaintiff's motion. Costs upon such motions should only be allowed in favor of parties who have pleaded according to the rules of code pleading, or upon the denial of motions which are merely harassing and plainly not intended to subserve any useful purpose. We cannot disturb the order appealed from in this respect, as it is a wise rule of the appellate courts not to review the imposition of costs upon a mere motion (Joyce v. Mayor, 12 Abb. Pr. 309); but, while we affirm the order appealed from, we award no costs upon the appeal.
GUY, J., concurs; SEABURY, J., concurs in result.
Order affirmed, without costs.