
    Louise Ellis, Respondent, v. Samuel Keeler, as Executor, etc., of Julia A. Chapman, Deceased, and Others, Defendants, Impleaded with Martha Douglas and Others, Appellants.
    Second Department,
    May 1, 1908.
    Pleading — answer — demurrer — insufficient allegations of lack of consideration, fraud, etc.
    A mere allegation, unsupported by facts, that there was “never any adequate consideration ” for the contract upon which the plaintiff sued, being a conclusion of law, states, no defense.
    So, too, allegations that the execution of the contract was wrongfully procured by means of various fraudulent misrepresentations and other fraudulent and unlawful practices are mere conclusions stating no defense.
    An allegation that at the time of the execution of the contract the promisor .“was 83 j'ears old and had no one present to consult or advise with,” though stating facts, is insufficient as a complete defense, for there is no presumption that a person of that age cannot transact business without advice.
    An allegation that the person executing the contract “ was not informed of and did not know or understand the true contents, purport or legal effect ” of the agreement, states no defense, in the absence of allegations of fact showing that it was the purpose of the promisee to take unfair advantage of the promisor by fraudulent means, and especially so where no mental incapacity or duress is alleged.
    An allegation that an agreement was executed by the promisor "when under the influence of pain and anguish,» induced by various threatening and unlawful actions and misrepresentations of the plaintiff to such an extent that the execution of said agreement was not the free and uncontrolled and voluntary act ” of the promisor, states no defense, where the facts constituting the pain and anguish and threats and unlawful misrepresentations of the plaintiff are not alleged.
    An allegation that the execution “was not the free, uncontrolled and voluntary act ” of the promisor is a mere conclusion in the absence of allegations of fact.
    A demurrer to a separate defense merely admits the truth of all the facts stated and necessary inferences resulting, but does not admit the truth of conclusions either of law or fact.
    Appeal by the defendants, Martha Douglas and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25tli day of November, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to a separate defense contained in the answer of the said defendants.
    
      
      Harold Swain [Norman Wilmer Chandler with him on the brief], for the appellants.
    
      L. C. Ferguson, for the respondent.
   Hooker, J.:

This action was brought to enforce an alleged contract between the plaintiff and Julia A. Chapman, deceased, by which the plaintiff claimed that she is entitled to one-half of the real and personal property of said deceased; the complaint demands judgment that the parties to whom such property was devised and bequeathed by the will of the said Julia A. Chapman, convey and deliver to the said plaintiff one-half of the estate of said deceased after the payment of the debts and administration expenses. The alleged contract is set forth in the 6th paragraph of the complaint, which avers that for valuable consideration an agreement was entered into between the said Julia A. Chapman and the plaintiff, by which the former agreed not to diminish the one-half of her estate, which-she left to the plaintiff by will, if the plaintiff survived her. It is alleged that the said agreement was dated December 7, 1893. It is also alleged in the complaint that prior to that day the said Julia A. Chapman made a will, leaving one-half of her estate to the plaintiff. The defendants who appeal answered the complaint, denying that the will was ever executed, and also denying the allegations in regard to the said contract of December 7, 1893. The answer also contains a paragraph which they allege constitutes a complete defense to the action. It reads as follows: “ Further answering said complaint, and for a separate and complete defense thereto, these defendants allege, upon information and belief, that there was never any adequate consideration for the alleged agreement set forth in paragraph sixth of said complaint, and that if said agreement was executed by said Julia A. Chapman, the execution thereof by said Julia A. Chapman was wrongfully procured by the plaintiff by means of various fraudulent misrepresentations and other fraudulent and unlawful practices, and at a time when said Julia A. Chapman was eighty-three years old, and had no one present to consult or advise with, and ivas not informed of and did not know or understand the true contents, purport or legal effect of said alleged agreement, and that said Julia A. Chapman executed the same when under the influence of pain and anguish, induced by various threatening and unlawful actions and misrepresentations of the plaintiff to such an extent that the execution of said agreement was not the free, uncontrolled and voluntary act of said Julia A. Chapman.”

The plaintiff demurred to this separate and complete defense on the ground that it was insufficient in law. The demurrer was sustained and the answering defendants appealed.

The first statement is that there was never any adequate consideration for the alleged agreement. It is clear that this is hut a conclusion of law, for the question whether the consideration is adequate in a given case is one of law, to be ascertained from such facts as may be pleaded to support the conclusion. Doubtless a different question would have been presented if these defendants had pleaded that there was no consideration' whatsoever to support the contract, but in averring that the consideration was inadequate, it is clear that the full purport of the allegation cannot be disclosed without some statement of fact to amplify the conclusion expressed in the term inadequate.”

The next allegation is that the execution of the contract was wrongfully procured by means of fraudulent misrepresentations and other fraudulent and unlawful practices. It is almost too plain for argument that these are nothing more than empty conclusions of law, which mean nothing without the support of sufficient allegations of fact. Such general allegations are insufficient without stating the nature of the alleged misrepresentations and fraudulent practices or influences. (New York & M. V. Transportation Co. v. Tyroler, 25 App. Div. 161; Booth v. Dodge, 60 id. 23.)

The next allegation, that the deceased was eighty-three years old at the time the contract was entered into and had no one present to consult or advise with, seems to be the only allegation of fact in this paragraph of the answer. These two facts taken alone, however, are insufficient in law as a complete defense to the action set forth in the complaint. It is entirely likely that one of eighty-three years of age might adequately transact business without leaning on some one for advice; certainly there is no presumption that merely because one party to a contract is of that age, and consulted and advised with no friend, his contract is void or even voidable.

The next allegation, that the deceased was not informed of and did not know the true contents, purport or legal effect of the said agreement is idle. If the deceased signed the contract it is no defense merely that she did not know the contents or was not informed thereof, unless the allegation is taken in connection with others, which establish facts showing that it was the purpose of the other party of the contract to take some unfair advantage of the other by fraudulent means (Chu Pawn v. Irwin, 82 Hun, 607); and this especially in view of the fact that there is no allegation of mental incapacity of Julia A. Chapman, or of duress practiced upon her by the plaintiff.

The balance of the paragraph alleges that the contract was executed when the deceased was under the influence of pain and anguish induced by various threatening and unlawful actions and misrepresentations of the plaintiff, to such an extent that the execution of the agreement was not the free, uncontrolled and voluntary act of the said deceased. What the facts are that constituted the pain and anguish, and what the threatening and unlawful actions and misrepresentations of the plaintiff were are undisclosed by the pleader; such general allegations of misrepresentations and unlawful actions are not sufficient; the nature of the misrepresentations and practices and influences must be alleged (New York & M. V. Transportation Co. v. Tyroler, supra), and the allegation that the execution “ was not the free, uncontrolled and voluntary act of said Julia A. Chapman ” is a conclusion based upon insufficient allegations of fact. The conclusion must fall with the failure to allege the facts. (Hearst v. McClellan, 102 App. Div. 336; New York & M. V. Transportation Co. v. Tyroler, supra)

The plaintiff’s demurrer did not admit the truth of the conclusions alleged in the separate defense; for the demurrer admits the truth of all the facts stated and necessary inferences resulting, but it does not admit the truth of any conclusions either of law or of fact. (Frank v. Mandel, 76 App. Div. 413.)

The interlocutory judgment must be affirmed, with costs.

Woodward, Jerks and Rich, JJ., concurred; Gaynor, J., concurred in separate opinion.

Gaynor, J. (concurring):

The trouble with the so-called defence is that it is á mere jumble of words, instead of a precise allegation of facts not embraced in the issue raised by the denials of the answer, and which, taking the complaint to be true, would nevertheless defeat the action, which is the test of the sufficiency of matter pleaded as a defence. If it does not bear this test it is not a defense but mere verbiage. Whether the consideration alleged in the complaint for the agreement therein alleged is adequate ” is a question of law, or, this being a suit in equity, may be of equitable consideration in connection with other matters on the question of the specific performance prayed for by the plaintiff. The deceased had the right to make the agreement for any consideration, however small. The failure to allege the false representations and practices makes the allegation on that head worthless. The same is true of the general allegation that the deceased executed the agreement under the influence of pain and anguish induced by various threatening and unlawful actions and misrepresentations of the plaintiff”. “ Various” will not do; they must be particularly alleged. There is no prayer that the contract be declared void, although if it stand it must be carried out. It is therefore quite impossible to understand what object the learned pleader had in his head.

Interlocutory judgment affirmed, with costs.  