
    Joseph H. White, App’lt, v. John Koster et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    1. Pleading—Motion to make mobe definite.
    Where the answer definitely puts in issue the allegations of the complaint, a motion by the plaintiff to make it more definite and certain will be denied.
    2. Same—Denial.
    A denial, general or specific, cannot be included in, and form part of, an affirmative defense, not containing a counterclaim.
    3. Same—Incobpobating mattebs albeady pleaded. ,
    A defendant has the right to incorporate affirmative allegations of a former defense in a subsequent defense by either repeating, or by such reference as should make them a part of the latter defense.
    Appeal from an order, denying a motion to make the answer more definite and certain.
    The amended complaint and answer are as follows :
    “The amended complaint of the plaintiff above-named respectfully shows: First. Upon information and belief, that the above-named defendants, on or about the 24th day of February, 1892, represented to one Marie Lloyd that they, said defendants, were in the theatrical business, having a variety theater on Twenty-Third street, near Sixth avenue, in the city of Hew York. Second. Upon information and belief that on the strength of the representations mentioned in the first paragraph, said Marie Lloyd, on or about said 24th day of February, 1892, entered into an agreement in writing with said defendants whereby she agreed to perform, in her usual business, which was that of comic songs and dances, for a period of nine weeks, to commence July 4, 1892, at Koster & Bial’s theater of varieties, then conducted" by said defendants at Twenty-Third street, near Sixth avenue, in the city of Hew York, aforesaid. Third. Upon information and belief, that said defendants did not have a theatrical license allowing them to conduct a theater of any kind at their said place on Twenty-Third street near Sixth avenue, on the 24th day of February, 1892, or at any time thereafter, and it was contrary to the laws of the state of New York for them to conduct a theater at said place without a license. Fourth. Upon information and belief, that on or about the 24th day of February, 1892, and continuously thereafter, and to and including the period for which said Marie Lloyd agreed to perform as aforesaid, said defendants sold wine, beer and strong and spirituous liquors to persons in the auditorium of their said theater of varieties, or place of giving performance,, while the theatrical performance was in progress at said place on Twenty-Third street, near Sixth avenue, in said city of New York, aforesaid. Fifth. Upon information and belief, that by reason of the selling of" said wine, beer, and strong and spirituous liquors as aforesaid, whatever license said defendants had, if any, was vacated, annulled, and rendered void of itself, without any action by the authorities of the city, county, or state of New York. Sixth. Upon information and belief, that said Marie Lloyd was wholly ignorant of the facts alleged'in the third, fourth and fifth paragraphs pf this amended complaint, and did not become aware of the same until she paid the $600 to said defendants hereinafter mentioned. Seventh. Upon information and belief, that on or about the 9th day of October, 1894, in an action in the supreme court of this state, wherein the above-named defendants were plaintiffs and said Marie Lloyd was defendant, a warrant of attachment against the property of said Marie Lloyd was issued, on the cause of action alleged in the affidavit of the defendant Rial, to recover the liquated damages for an alleged breach of said agreement on the part of said Marie - Lloyd to perform in said theater of varieties, as she had therein agreed to do, and that in said supreme court action the said Marie Lloyd, not then being represented by counsel, or being in possession of the proper facts, and by reason of the stress of said warrant of attachment, she, on or about the 11th day of October, 1894, paid to the above-named defendants the sum of $600 for the purpose of having said attachment removed; that since the payment of said $600, as aforesaid, said Marie Lloyd discovered that, at the time when the alleged breach of contract took place, and at the time said agreement was entered into, said defendants had not such license under the statute as would permit said Marie Lloyd to perform the act, to wit, to dance, which by said contract she was employed to do. Said ■ defendants, however, well knowing that said Marie Lloyd was to dance, and well-knowing that that was an act which could not legally be performed at their said place on Twenty-Third street, near Sixth" avenue, aforesaid, and that, even though she had been willing to perform said acts, said defendants then had no place, and' never had in said city a place, wherein her performance could legally have taken place, and said Marie Lloyd did not know at that timethat'said defendants had no license that would have permitted such performance, but she was under the belief, and relied on the belief, that said defendants' license, if any, would permit such performance, and through this mistake of fact, and by the stress of said warrant of attachment and the levy thereunder, paid said $600 to said defendants as aforesaid. Eighth. That, before the commencement of this action, for value received, by an instrument in writing said Marie Lloyd transferred and set over the foregoing claim, demand, and cause of action to the above-named plaintiff, who ever since has been the owner and holder thereof. Ninth. That, before the commencement of this action, and on or about the 15th day of November, 1894, said plaintiff duly demanded from said defendants the repayment of said $600 so paid by mistake as aforesaid, but said defendants have wholly failed to pay the same or any part thereof. Wherefore said plaintiff demands judgment against said defendants, and each of them, for said sum of $600, together with the interest thereon from the 11th day of October, 1894, besides the costs of this action.”
    “ The defendants answer the amended complaint in this action as follows : First. For a first defense, they admit that, in the action referred to in 'the amended complaint, a warrant of attachment against the property of Marie Lloyd was issued on a cause of action, alleged in an affidavit of the defendant Bial, to recover the liquidated damages for breach of an agreement on the part of said Marie Lloyd. Said agreement with Marie Lloyd was in writing. A copy thereof is in the possession of the defendants, and for greater certainty as to the terms thereof, defendants pray leave to refer to the same, when the same is produced and proven, if need be. The defendants deny, on information and belief, that Marie Lloyd was not represented by counsel in the settlement of said action. They deny, on information and belief, that, at the date of such settlement, she was in ignorance of any of the material facts as alleged in the amended complaint, or that she made the contract under any misapprehension, either of fact or law, as alleged in the complaint. They admit that Marie Lloyd, on or about October 11} 1894, paid to them the sum of $600 in settlement of the claim upon which said action was brought. They deny that said payment of $600 was made by Marie Llovd under any mistake of fact, or under the stress of said warrant of attachment, or in any respect under duress. They admit and allege, that, at the time they made said contract with Marie Lloyd, to wit, on or about February 24,1892, and at the time when said contract was to have been performed by Marie Lloyd, they were in possession of a place on Twenty third street, near Sixth avenue, in the city of New York, where public performances of such character as that contemplated in said contract could lawfully be given. They admit and allege that, at said times, they held a license from the mayor to maintain such place for such public performances, but as to the terms of said license, and the legal effect thereof, they pray leave to refer to the same, when the same is produced and proven, if need be. They deny that they had no place where said contemplated performance by Marie Lloyd could lawfully be given, They deny that any levy was made under said warrant of attachment, and on the contrary allege that said payment of $600 was a voluntary payment, made by Marie Lloyd in settlement of the claim, for which said action was brought. They deny, on information and belief, the allegations contained in the eighth paragraph of the complaint. Second. For a second and separate defense, the defendants, reiterating the denials and repeating the allegations contained in their first defense, further answering, allege on information and belief, that the plaintiff is not the real owner or holder of the claim to recover which this action is brought, and is not the real party in interest, but that the real party in interest is Marie Lloyd, who is a nonresident of this state, and has returned to her home in England. Wherefore the defendants demand judgment that the complaint be dismissed, with costs.”
    
      Jacob Fromme, for app’It; Francis G. Kimball, for resp’ts.
   Per Curiam.

Tho order appealed from denied plaintiff's motion to make certain allegations of the answer more definite and certain, by stating the character of the license which defendants held from the mayor to maintain a place of amusement at Twenty-Third street. The complaint alleged a contract with the plaintiff’s assignor, Marie Lloyd, by which she agreed to take part in certain performances, to be given by the defendants, for a period of nine weeks, and that she was induced to make such contract by the representations of the defendants that they had a variety theater on Twenty-Third street, near Sixth avenue, in the city of Hew York, where they were authorized to conduct a theatrical business; but that the defendants did not have, at the time of the making of the contract, or during the period provided for its continuance, a theatrical license allowing them to conduct a theater of any kind at such place. The answer alleges possession of a place on Twenty-Third street by the defendants, where public performances of such character as that contemplated in the contract could lawfully be given, and that they held a license from the mayor to maintain such place for such public performances. The answer, therefore, definitely and certainly put in issue the allegations of the complaint referred to, and more than that the plaintiff is not entitled to have on a motion of this character. What he seeks to obtain is'the evidence upon which the defendants rely to support their denials of plaintiff’s allegations, and their affirmative allegations that they held a license from the mayor authorizing them to give such performances as the contract contemplated. That evidence the special term properly decided they were not entitled to have, under the guise of making the answer more definite and certain. The defendants opened their second defense with the phrase, “ Reiterating the denials and repeating the allegations contained in their first defense.” As an affirmative defense not including a counterclaim necessarily admits and avoids the cause of action set out in the complaint, a denial, general or specific, cannot be included in and form a part of such defense. The denial may be pleaded in the same answer as a separate defense, but not as a plea of new matter. Stale v. McChesney, 87 Hun, 293; 68 St. Rep. 442. But, while the defendants’ attempt to repeat the denials was error, they had the right to incorporate the affirmative allegations of the first defense in the second one by either repeating, or by such reference as should make them a part of the affirmative defense. The motion was, therefore, too broad, and the moving party was not entitled to have his motion prevail to the extent asked. The denial of his motion, therefore, does not call for reversal.

The order should be affirmed, with $10 costs and printing disbursements.  