
    MILLVILLE MANUFACTURING CO. v. SALTER.
    
      N. Y. Supreme Court, First Department, General Term ;
    
    March, 1885.
    Action against acceptok of bill of exchange.—Pleading ; DENIALS IN ANSWEK.
    A denial in an answer of “ each and every allegation therein contained not hereinafter specifically admitted, controverted or denied,” is neither a general nor a specific denial, and raises no issue.
    
    The answer to an action against the acceptor of a draft, contained a denial in this form, followed by an admission of the acceptance of “ a draft similar to the one set forth in the complaint,” with an allegation that the acceptance thereof was for the accommodation of the drawer and without consideration.—Held, that the allegation of the complaint of an acceptance of the draft in suit was admitted, and it was error to dismiss the complaint at the trial for failure to prove the fact.
    Appeal from a judgment for the defendant, entered upon the report of a referee.
    The Millville Manufacturing Company, a New Jersey corporation, brought this action against John T. Salter, as the acceptor, and Lemuel S. Canfield, as the drawer of a bill of exchange.
    The action was begun in 1877. The complaint sets out a copy of the draft in suit, drawn by Canfield to his own order, and alleges his indorsement thereof, and its acceptance by Salter and subsequent delivery, so indorsed and accepted, to the plaintiff for value, before maturity.
    The answer to the complaint first “ denies each and every allegation therein contained not hereinafter specifically admitted, controverted or denied,” and proceeds : “ II. And this defendant, for a further and distinct defense, admits the. acceptance of a draft similar to the one set forth in the complaint herein, but alleges that the same was for the accommodation of the drawer and co-defendant Canfield, and that there was never any value or consideration for the acceptance or payment of said draft by this defendant.”
    The action was referred by consent. The referee dismissed the complaint as to Salter upon the ground that there was no evidence of his acceptance of the draft in suit, holding that the denial in the first paragraph of the answer was sufficient to put the acceptance in issue, and that the second paragraph did not admit the acceptance of the draft in suit, but only of a draft similar thereto.
    From the judgment entered upon the referee’s report in favor of the defendant, plaintiff appealed.
    
      Charles M. Hall, for the plaintiff, appellant.
    I. That the first so-called denial is neither a general or specific denial, under Code Pro. § 149, or Code Civ. Pro. § 500, and raises no issue, is established by the following cases : Clark v. Dillon, 4 Civ. Pro. (Browne) 245 ; Miller v. McCloskey, 9 Abb. N. C. 303; Powers v. Rome, Watertown & Ogdensbnrgh R. R. Co., 3 Hun, 285 ; Luce v. Alexander, 4 Civ. Pro. (Browne) 428 ; McEncroe v. Decker, 58 How. Pr. 250 ; People v. Snyder, 41 N. Y. 397 ; People v. Northern R. R. Co., 53 Barb. 98 ; aff’d in 42 N. Y. 217; Bussell v. Bussell, N. Y. Daily Reg, Oct. 3, 1883 ; Sheldon v. Sabin, 4 Civ. Pro. (Browne) 4; Leary v. Boggs, 3 Id. 227; Bixby v. Drexel, 9 Reporter, 630; Chamberlin v. Am. Life & Trust Co., 5 Weekly Dig. 129 ; Hammond v. Earle, 5 Abb. N. C. 105 ; Farnsworth v. Wilson, 5 Civ. Pro. (Browne) 179, note; Scott v. Royal Exch. Shipping Co., 5 Monthly L. Bul. 64; Pratt M’f’g Co. v. Jordan Iron & Chemical' Co., 33 Hun, 143, 544; Thierry v. Crawford, 33 Hun, 366; Callanan v. Gilman, N. Y. Daily Reg. Oct. 8, 1884; Spiegel v. Thompson, city . court opinion, filed February 10, 1884 (not reported); Fleischmann v. Stern, 90 N. Y. 110; Smith v. Gratz, 59 How. Pr. 274.
    
    In seven of these cases, the question whether the denial was good arose on trial and not on motion, viz.: Clark v. Dillon, Miller v. McCloskey, Luce v. Alexander, People v. Snyder, People v. Northern R. R. Co., Sheldon v. Sabin and Callanan v. Gilman.
    II. The cases relied upon by the referee (Allis v. Leonard, 46 N. Y. 688 [reported in full in 22 Alb. L. J. 28]; Youngs v. Kent, 46 N. Y. 672; Walsh v. Mehrback, 5 Hun, 448; Haines v. Herrick, 9 Abb. N. C. 379 ; Calhoun v. Hallen, 25 Hun, 155), do not apply to the denial in the case at bar. In all these cases the answer contained affirmative, distinct admissions of certain allegations. In the case at bar, there are no such admissions, and the word “ denied” is used in the denial here in question, and hence such denial is radically different from the denials in the Allis case, and in Youngs v. Kent, Walsh v. Mehrback, and Calhoun v. Hallen (above).
    
    III. The referee held that if the denial was bad, ■ plaintiff must make a motion to strike it out, or to make it more definite and certain, and that going to trial is a waiver. By the decisions, plaintiff has the election to make such motion, or to take advantage of the bad denial on trial (see Wachter v. Queonzer, 29 N. Y. 547; Spooner v. Keeler, 51 Id. 527; Tilson v. Clark, 45 Barb. 178). This view is supported by the cases (supra), of Clark v. Dillon, Miller v. McCloskey and Luce v. Alexander, and also by other cases above cited, where upon trial the court gave effect to the objection as to the denials, and did not hold that plaintiff had waived the objection by going to trial and not making such a motion. Besides, § 546, Code Civ. Pro., as it now is, was not in force at the time Salter’s answer was served, and did not take effect until after-wards. No.fc until that section took effect was there any such thing as moving to make a denial “ more definite and certain.” Prior to that time, section 160 (old Code) was in force, and that only authorized a motion to make “allegations of a pleading” more definite and certain. A denial in an answer is not an “allegation.” To hold that plaintiff here could not at the trial object to this denial, would be in direct opposition to section 522, Code Civ. Pro., providing that “Each material allegation of the complaint not controverted by the answer, must, for the purposes of the action, be taken as true.” The court must give effect to the objection, whether made by motion or on trial, otherwise the words “for the purposes of the action” are rendered nugatory. A denial is either good or bad. From the nature of the case a denial cannot be made more definite and certain. It must be judged by the statute which provides what it shall be, and a defendant should be held to the consequences of an unauthorized denial.
    IV. The denial in question being bad, and the making of the acceptance being therefore admitted, Salter could not be allowed, under any other part of his answer, to claim or prove that he did not accept the draft (Fleischmann v. Stern, 90 N. Y. 110; Dunham v. Cudlipp, 94 Id. 130 ; Tell v. Beyer, 38 Id. 161; Paige v. Willet, Id. 28.
    V. The statement in defendant’s answer, that he “admits the acceptance of a draft similar to the one set forth in the complaint,” is an admission that he accepted the draft sued on, and hence, the second defense is no defense. If that so-called defense did not refer to the draft in suit, then it was an attempt to set up a defense to a draft not sued on and was, therefore, worthless. Answer stating that at the time mentioned in the complaint the defendant “made and indorsed a note like that set forth in the complaint.” 
      Held, that the allegation refers to the note named in the complaint (Moody v. Andrews, 39 Super. Qt. (J. & S.) 302. The same thing was held in Stedeter v. Bernhard (4 Monthly L. Bul. 31; S. C. as Stedeker v. Taft, N. Y. Daily Reg., Sept. 16,1882), on motion for judgment on the answer as frivolous. Van Hoesen, J., in his opinion there, says: “It (the answer) does not profess to deny the validity of the check in suit, but it avers there is a cheek in existence as to which the defendants have a defense set up in the answer. If the check in suit, is the check to which they have a defense, then the answer relates to that check, but if the check in suit is not the one they mean, no answer to the claim is made. This is an aggravating form of hypothetical pleading, and the answer is really no answer at all to the allegations of the complaint.”
    
      J. Homer Hildreth, for the defendant, respondent.
    I. The denial in form set forth in the answer of the defendant Salter, herein, is a good and sufficient denial under the present Code and practice, and sustained by the weight of authorities. See Allis v. Leonard, 46 N. Y. 688 ; Id. 22 Alb. L. J. 28 ; Youngs v. Kent, 46 N. Y. 672 ; Walsh v. Mehrback, 5 Hun, 448 ; Haines v. Herrick, 9 Abb. N. C. 379, 384; Calhoun v. Hallen, 25 Hun, 155.
    II. If the denial in the answer of defendant Salter was not precise and clear enough for plaintiff to understand what it put in issue, it was his bounden duty to have moved against it before trial, either as frivolous, or to make it more definite and certain. See 46 N. Y. 672; Stickney v. Blair, 50 Barb. 341-344 ; Farmers’ & Citizens’ Bank v. Sherman, 33 N. Y. 69; Seeley v. Engell, 13 N. Y. 542, 548 ; Marie v. Garrison, 83 N. Y. 14-23. In the case at bar, the plaintiff having deliberately elected to go to trial on the answer as it stood, should now be held to an ordinary understanding of its language, or what can by reasonable and fair intendment be implied from the allegations thereof.
    III. The answer of defendant Salter, having been interposed" in 1877, and unassailed until 1883, should now be held good, regardless of the more stringent rules, of pleading applied by some of the judges of our courts to answers of the present day. See Harris v. Jex, 55 N. Y. 421. At the time the answer was drawn the form of denial employed therein, and attacked on this appeal, was in accordance with the uniform practice of the bar. See People v. Northern R. R. Co., 42 N. Y. 239-241, opinion Foster, J.
    IV. The answer of defendant Salter clearly put in issue the alleged fact of his acceptance, and called in question its genuineness in connection with the draft in suit. There is a material and well recognized difference between his admission of accepting a draft, and one admitting the acceptance of the draft in suit. See Bardin v. Stevenson, 75 N. Y 164,168 ; Shaver v. Ehle, 16 Johns. 201; Palmer v. Manning, 4 Denio, 131; Minard v. Mead, 7 Wend. 68; Walsh v. Mehrback, 5 Hun, 448-451.
    V. To hold the denials in defendant Salter’s answer bad would work manifest injustice; for thereby said defendant would be debarred of the benefits of his affirmative defense, because estopped in such case from proving any state of facts inconsistent with what, would be (after said denials had been swept away), a virtual admission of plaintiff’s averments. See Fleischmann v. Stern, 90 N. Y. 110, 114.
    
      
       See Clark v. Dillon, ante, p. 261, with note on Denials in Pleading, reviewing the New York cases.
    
   Per Curiam.

The action, so far as it was against the defendant Salter, was brought to enforce his liability as the acceptor of a draft or bill of exchange upon him. Its presentation to, and acceptance, by him was alleged in the complaint, and by his answer, without either generally or specifically denying either of the allegations in the complaint, he admitted “ the acceptance of a draft similar to the one set forth in the complaint herein, but alleges that the same was for the accommodation of the drawer and co-defendant Can-field, and that there was never any value or consideration for the acceptance or payment of said draft by this defendant.”

The plaintiff did not prove the acceptance of the draft by Salter, and because of that omission, the referee determined the action in his favor. But in that he was clearly in error, for his answer contained no general denial and no specific denial of the acceptance of the draft by Salter, but admitted the acceptance of a similar draft, without any allegation that it was different from the one set forth in the complaint.

It was admitted, in effect, that the allegation contained in the complaint on this subject was true. That resulted from the omission to deny either generally or specifically what was alleged in the complaint. And the failure to deny the acceptance of the draft, together with the statement admitting the acceptance of a similar draft, was all that could be required to establish the fact that the defendant Salter did accept the draft in suit, as it was alleged he did in the complaint. The construction placed upon the pleadings by the referee was unsupported, by which he concluded that the acceptance of the draft Avas not established. He should, on the contrary, have held the pleadings to have admitted the fact of the acceptance, and determined the action upon the basis of the existence of that fact.

The judgment should ■ be reversed, and a new trial granted, with costs to abide the event. 
      
       Davis, P. J., Beady and Daniels, JJ.
     