
    Cornelius Donovan, Respondent, v. Thomas F. Main and Others, Defendants, Impleaded with John McKesson, Jr.,.and Others, Composing the Firm of “McKesson & Robbins,” Appellants.
    
      Frivolous pleading—answer “to the complaint," where the complaint has been amended,—a denial in hsec verba—the. use in a denial of the words “ as therein alleged ",—a denial of all allegations in a specified paragraph or of all with certain exceptions—a denial, accompanied with, affirmative statements of facts contrddieting the same allegations. ,
    Where the plaintiff in an action serves an amended complaint and the defendant serves an answer “to the complaint,” such answer should not he stricken out as frivolous simply because it fails to state that the answer was interposed to the amended complaint.
    An answer which denies in hcea verba all the substantive allegations of a paragraph in the complaint is not improper, where the denial is not framed in such a manner as to form a negative pregnant. .
    In such a case the use, at the conclusion of the denial, of the words as therein alleged,” in reference to the paragraph of the complaint, to which the denial relates, does not render the denial objectionable as constituting a negative pregnant; such words may be regarded as frivolous.
    Denials on information and belief of all the allegations contained in a certain, paragraph of the complaint,.or of all of such allegations except certain specified ones, are proper.
    Where an answer, after denying all of the allegations contained in a certain paragraph of the complaint, affirmatively alleges facts contradicting those set forth ’in such paragraph of the complaint, the presence of such affirmative allegations, while perhaps unnecessary to a scientific pleading, will not authorize the striking out of the answer as frivolous.
    Appeal by the defendants, John McKesson, Jr., and others, com-' posing the firm of “ McKesson & Robbins,” from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of April, 1902, as resettled by an order entered in said clerk’s office on the 29th day of April, 1902, overruling said defendants’ answer as frivolous and granting judgment as demanded in the complaint.
    
      Almet R. Latson and Thomas N. Cuthbert, for the appellants.
    
      Jacob Friedman, for the respondent.
   Goodrich, P. J. :

The action is brought to recover damages occasioned to the plaintiff by an explosion of chemicals stored on the premises of Tarrant & Co., on Warren street in the borough of Manhattan. The complaint was served November 6, 1901. Certain of the defendants composing the firm of McKesson & Robbins appeared on November 30. The plaintiff served an amended complaint on December 6. McKesson & Robbins served an answer to the complaint of the plaintiff in this action ” on December 24. The plaintiff moved for an order overruling the answer of the firm as frivolous and for judgment and a writ of inquiry to assess damages. The court granted the motion with leave to the firm to amend the answer, handing down a memorandum, Denials in haee verba are not permissible, nor are these denials in gross. The request is that they should be to each ’ allegation., and not of all in gross. Motion granted, with leave to serve a proper and scientific answer within ten days. $10.00 costs to abide. W. J. G.”

The respondent’s counsel argues that the answer does not state that it is an answer to the amended- complaint, and is consequently frivolous. When an amended complaint is served, it alone constitutes the complaint in the action, and the extremely technical objection that the answer, using the words “ to the complaint ” instead of “ to the amended complaint,” is clearly untenable, and was very properly disregarded by the learned court, which based its decision on the ground already stated.

We are thus brought to an analysis of the complaint and answer seriatim. The 1st paragraph of the former alleged in substance that at the times thereinafter mentioned Tarrant & Co. was a domestic corporation engaged in manufacturing chemicals and drug products, and in the storage of chemicals, drugs and other substances which were received from various persons, and were of a dangerous and explosive character, at a building on Warren street, of which Tarrant & Co. was owner and in possession and control. The defendant firm of McKesson & Robbins, on information and belief, denied that Tarrant & Co. was engaged in the business of manufacturing chemical and drug products of a dangerous and explosive character, or in the receiving for storage from various persons of chemicals, drugs and other substances of like dangerous and explosive character, at the building named, using nearly the words of the 1st paragraph of the complaint, and adding “as alleged in the paragraph or sub-division of said complaint therein marked or designated I.’ ” This is equivalent to a denial that Tarrant & Co. was, at the time named iir the complaint or at any time, engaged in the specified business.

The learned justice at Special Term held that denials in hæc verba, or in gross are not permissible. We are of opinion that, while this may be true in some cases, it was error as applied to the present-pleadings. When a paragraph of a complaint contains allegations material to the cause of action, the answer may contain a general or specific denial of each material allegation of the complaint (Code Civ. Proc. § 500); that is, it may deny each and every allegation of a paragraph or may use either the substantive words or the exact words of the allegation in making the denial. Either form in the present case constitutes good pleading, and upon the briefs of counsel no reason has been adduced to the contrary. One office of an answer being to form an issue, it is difficult to see why a denial in hceo verba of the 1st paragraph-of the complaint herein does not fulfill such office, or why it is not a specific denial. When a defendant interposes a general denial, either of the allegations of the entire complaint or of a separate paragraph of the complaint, he frames an issue. A denial of all the substantive allegations of a paragraph set out in the language used in the complaint is tantamount to a denial of each allegation of the paragraph.

The counsel for respondent refers to an opinion of the learned justice from whose decision the present appeal is taken, in Durst v. Brooklyn Heights R. R. Co. (33 Misc. Rep. 124). From that decision no appeal is reported, and while the parties to that litigation concluded to abide by it, we cannot agree with any portion which is contrary to our views above expressed.

There might be some question under the decisions, whether in certain cases a denial of the allegations of a paragraph of a complaint “ as therein alleged ” might not constitute a negative pregnant, but this is hardly correct where the denial specifically uses all the language of the whole paragraph. It may be that the concluding words of the denial, “ as therein alleged,” are surplusage, but that does not authorize the striking out of the answer as frivolous.

It is true that where an answer uses the words of the complaint in such a way as to form a negative pregnant, the pleading is improper. Such an instance may be found in Baker v. Bailey (16 Barb. 54), where the allegation was that on December eighteenth the defendant assaulted a person who by reason of the injuries died on December twenty-fifth. The answer denied that the defendant on December eighteenth committed an assault from which death resulted on December twenty-fifth. The court held that this was a clear case of negative pregnant, because (pp. 55, 56) “ Time and place are immaterial; * * * and the plaintiff could have proved the commission of the injury on any other day than that stated in the complaint. The defendant has denied that he made the assault, and that the deceased died of the injury committed, on the particular days stated in the complaint, leaving the answer pregnant with the affirmative admission that he made the assault, and that the deceased died thereof, on other days than those mentioned in the complaint. Such is the legal construction of the pleading. (Comyn’s Dig. tit. Pleader, R; 5 Dyer, 95, pl. 36; 2 Saund. 319; Bac. Abr. tit. Pleas, No. 6.) The pleader says that he did not make an assault on the deceased on the day mentioned in the complaint, and the legal construction of this pleading is that he did, on some other da/yP But in the present pleadings the allegation of the complaint is that at the time of the injury to the plaintiff Tarrant & Co. was engaged in business of a dangerous character. The answer denies that Tar-rant & Co, was engaged in such business, and that covers not only the time named in tlie complaint, but all other time. The engage" ment in such business at the time of the injury is the substance of the denial in that answer, so that the denial is not within the defination of a negative pregnant, as was the fact in Baker v. Bailey (supra).

Paragraph 2 of the complaint alleges that at the time of the injury two of the defendants, Main and Powers, were trustees of the corporation Tarrant & Co., and had entire control of the business and knowledge of the drugs and chemicals stored and of their dangerous and explosive character. The answer, on information and belief, denies all the allegations contained in the paragraph.” This is clearly a general denial.

Paragraph 3 of the complaint alleges the partnership of four defendants under the name of McKesson & Robbins, and of two other defendants under the name of Rogers & Pyatt. The answer, on information and belief, denies all the allegations contained in paragraph 3 of the complaint, except that which relates to the partnership of McKesson & Robbins. The denial is proper pléading.

Paragraph 4 of the complaint alleges that some time prior to the accident the firm of McKesson & Robbins and the firm of Rogers & Pyatt placed on storage with Tarrant & Co. large quantities of explosive materials “ largely in excess of legal permit and warrant therefore (sic) issued to them by the Fire Department of the City of New York; and that the defendants; ‘McKesson & Robbins ’ and Rogers & Pyatt, failed to obtain any permit for the storage of said drugs and chemicals as aforesaid, all of which was in violation of the law and of Title 3 of Chapter XV of the Charter of the City of New York and of the Municipal ordinances and rules of the , Fire Department of said City; and of all of which all the defendants at all the times aforementioned had dire knowledge, and that the storing of said drugs, as aforesaid, by the defendants constituted a nuisancé and a danger and menace to the persons and property of those in the vicinity of said premises.”

The answer denied all the allegations contained in paragraph 4 of the complaint and added, “ and said defendants allege that all drugs, chemicals and other merchandise at any time stored or kept by them within the City of New York, were so kept and stored in due compliance with law and under special permit or permits issued to them in so far as such permit or permits were or are by law required.” This latter clause, while perhaps to scientific or strict pleading unnecessary, does not authorize the striking out of the answer as frivolous.

Paragraph 5 of the complaint alleged that on October twenty-ninth, by reason of such wrongful and unlawful storing of such drugs and chemicals and other substances at said premises, and “ without any fault or neglect on the part of the plaintiff,” an explosion occurred whereby the plaintiff, who was lawfully on Warren street, a public highway, was struck and injured.

The answer, in paragraph 5, on information and belief, denied “ all the allegations contained ” in paragraph 5 of the complaint, and-alleged, “ upon information and belief, that whatever damages and injuries were sustained by the plaintiff at the time and place, or on the occasion in the complaint mentioned, were contributed to and due to the negligence and want of care of the said plaintiff, and were not the result of any negligence on the part of these defendants or their agents, servants or employees.”

It is true that the denial of the allegations of paragraph 5 was a denial of the allegation of the absence of any contributory negligence of the plaintiff sufficient to raise an issue on that subject, and that an affirmative allegation of the contributory negligence of the plaintiff was unnecessary, but it is difficult to see what injury has been occasioned to the plaintiff thereby, and above all, why such an answer justifies the granting of a motion and the entry of an order “ overruling the answer of the defendants McKesson & Bobbins’ herein, as frivolous, and for jndgrnent as prayed for in the complaint.” The Code of Civil Procedure (§ 519) requires that the allegations of a pleading must be liberally construed with a view to substantial justice between the parties. How can it be said that the allegations of an answer which points the plaintiff to the defense of contributory negligence, though needlessly stated or alleged, should subject a defendant to the striking out of his answer as frivolous ?

Neither is the error cured by the permission to amend the answer. The defendants should, not be subjected to such labor on what appears to be a frivolous objection to the answer.

Since the foregoing was written our attention is called to the recent case of Staten Island Midland R. R. Co. v. Hinchliffe (170 N. Y. 473). The appeal went up on demurrer to certain paragraphs of an answer. The court said (p. 481): “ The demurrer assumes the truth of the facts thus alleged. If they are true it is difficult to see why they do not constitute a valid defense to the cause of action set out in the complaint. It is probably a defense that could be proved under the general denial, but this does not render the specific allegations demurrable. There are defenses which may be stricken out . on motion but cannot be reached by demurrer. Section 500 of the Code of Civil Procedure provides : ‘ The answer of the defendant must contain: 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense or counterclaim in ordinary and concise language without repetition.’ It may be conceded that this defense is not new matter, as it is not in avoidance or confession of the matters set forth in the complaint. But it is none the less a defense, because it is what is termed in pleading a denial. (Bouvier’s Law. Dictionary; Anderson’s Law Dictionary; Moak’s Van Santvoord’s Pleadings, p. 509.) If authority for such a plain proposition is needed we have it in the case of Benedict v. Seymour (6 How. Pr. 298, 304). That was one of the early decisions explaining the nature of pleadings under the Code, and in that case Judge Selden said: ‘ Defenses, then, are divisible into two classes: 1. Those which deny some material allegation on the part of the plaintiff. 2. Those which confess and avoid those allegations.’ ” This seems to be a disapproval of the views upon the subject of “ defenses ” expressed in the Durst Case (supra), and is controlling upon this court.

For these reasons the order must be reversed, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion- denied, with costs. 
      
       Comyn’s Dig. tit. Pleader (R. 5); Whitton v. Marine, Dyer, 95a, pl. 36 ; Bennet v. Holbech, 2 Saund. (6th ed.) 319; Bac. Abr. tit. Pleas and Pleadings (I. 6).—.[Rep.
     