Opinion
June, 1900.
Neu Gilchrist for plaintiff.
Henry P. Keith for defendants.
This is a frivolous pleading. Though purporting to be a negative of the allegations of the counterclaim, it is a negative pregnant with their substantial truth. A denial in haec verba of the matter to be denied, with its allegations of "on or about", and its conjunctives, disjunctives, adjectives, and so on, is consistent with the substantial truth of the matter purporting to be denied. It is no denial (Kelly v. Sammis, 25 Misc. 6; Stuber v. McEntee, 142 N.Y. 206). And yet this way of denial in haec verba has grown to be quite common. It seems to have been started by a misunderstanding of the meaning of the learned judge writing in Baylis v. Stimson ( 110 N.Y. 621). But there was no intention there of introducing such a vicious practice. The learned judge was there animadverting against denials by folios, i.e. from such a line in such a folio to another line in another folio, which made it difficult on the original pleadings to find out what was denied, and impossible on the printed record on appeal for the reason that the original folioing was not there preserved. The denial here should have been simply of "each and every allegation in the counterclaim contained". And that is the form for a denial of the allegations of a complaint, with the addition "excepting", c., or, varying to suit the case, if the allegations excepted be more numerous than those denied, by denying each and every allegation in certain numbered subdivisions of the complaint contained, saying nothing of things not denied. This is the proper and scientific way of pleading, and enables a trial judge to ascertain at a glance what is in issue (Flack v. O'Brien, 19 Misc. 399; Mitnacht v. Hawthorne, 31 Misc. 378, and cases there cited).
The motion is granted with $10 costs.