
    James Green, Plaintiff, v. Robert B. Brown, Defendant.
    (Supreme Court, Kings Special Term,
    January, 1898.)
    1. Usury — Interest after maturity.
    A note or other contract for the payment of money is not usurious and void for providing for the payment of more than statutory interest after maturity.
    2. Pleading — Denial. ‘
    A denial in án answer is not a “ defence,” and may not be pleaded as or in a defence. • Denials and defences are distinct both in name and substance.
    3. Same — Demurrer.
    Only new matter, namely, matter not embraced within the issue raised by a general or special denial, may be pleaded as a defence; and the fact that in a pleaded defence is found a reiteration of a previous denial, is no reason for refusing to sustain a demurrer to such defence, when the new matter pleaded in it does not constitute a defence. A denial in a defence is mere surplusage, and not to be regarded.
    
      Trial of an issue of law in an action upon a promissory note. The complaint alleges the note to have been dated, and' made and delivered by the defendant to the plaintiff, at St. Louis, Mo., and by its terms to be payable to the order of the plaintiff one year after date at a named bank in the City of New York, with interest at the rate of six per cent, until maturity, and after maturity at the rate of eight per cent. The answer pleads as a defence that the note was not made and delivered at St. Louis, but at New York City, and that the agreement to pay eight per cent, interest after maturity made the note usurious and void. To this defence the plaintiff demurs that it is insufficient in law upon the face thereof.
    Edward F. Dwight, for plaintiff.
    Howard A. Sperry, for defendant.
   Gaynor, J.:

A note or other contract for the payment of money is not usurious and void for providing for the payment of more than the statutory rate of interest after maturity (Pomeroy v. Ainsworth, 22 Barb. 124; Sumner v. People, 29 N. Y. 337; Bank of Chenango v. Curtiss, 19 Johns. 335).

That there is incorporated in the.defence a denial of the allegation of the complaint that the note was given for value, does not prevent the demurrer from being sustained. This denial had already been pleaded in the appropriate place for denials, and should not have been repeated. And a denial is not a “ defence ”.. It can have no place in a defence. A denial in a defence is mere ' surplusage, and is not to be regarded. Not even a novice in pleading should plead a “ denial ” as a “ defence ”. In an answer .“ denials ” are pleaded, if there be any, and then come “ defences.” The latter always were, and they still are, distinct from the former in both name and substance. A defence may only contain new matter, viz., matter outside of the issue raised by a general or special denial (Code Civ. Pro., sec. 500). A defendant may set forth as many defences as he has,'“ whether they áre such as were formerly denominated legal or equitable,” and each must be separately stated and numbered (sec. 507).' This illustrates the confusion of calling a denial a defence, for who in referring to denials would distinguish them in respect of whether they are “legal or equitable”? Nothing should be pleaded “as a de-. fence” the burden of proving which is not upon the defendant. . Courts are liable to take careless pleaders at their word, and throw upon the defendant the burden of proving matters alleged as a defence which is no defence at all, but embraced within the general issue, thereby enabling the plaintiff to prevail, as in Whitlatch v. The Fidelity Co. (149 N. Y. 45). It has become almost the rule to find contributory negligence pleaded as a defence, although that issue is raised by a denial, and the burden of it is upon the plaintiff. It has even become quite common to find answers which formally plead not only denials, but also admissions under the head of Eor a defence ”, whereas an admission is neither a denial nor a defence, and does not need to be pleaded at all, for every material allegation not denied stands admitted. I do not overlook that in Fletcher v. Jones (64 Hun, 274) it was held that a demurrer to a defence of new matter in justification in an action of libel, which was adjudged to be no defence at all, could not be sustained because the previous general denial to the complaint was found to be reiterated in such defence; but I do not conceive that case to be regarded as more than local authority, if it remains even that. A general denial repeated in a defence is no more to be regarded than any other surplusage or idle verbiage found there. The broad meaning which has been given to the word defence in section 3253 of the Code has no application to the rules of pleading. The demurrer is sustained.

Demurrer sustained.  