
    Paolo Castiglione, Appellant, v. Austro-Americana Steamship Company, Limited, Respondent.
    (Supreme Court, Appellate Term, First Department,
    November, 1914.)
    Pleading — allegations contained in complaint — denial of allegations of complaint — setting forth affirmative defenses — when demurrer overruled — when affirmative defense by demurrer sustained.
    A complaint on two causes o£ action alleged the delivery of certain goods to defendant as' a common carrier and its failure to deliver the goods “ in the same condition in which the same had been received by it for delivery and in the condition in which the same was at the time of acceptance for transportation and carriage as aforesaid.” Both causes of action also set forth allegations of negligence, both general and specific, which it was claimed caused the damage. The answer, after a denial of the allegations of the complaint, set forth four alleged affirmative defenses three of which alleged that the conditions existed under which defendant’s liability was to be limited to responsibility for negligence. They also affirmatively stated that the damage, if any, occurred after these circumstances arose, and they all fairly alleged that it occurred without negligence on the part of defendant, its servants or agents. Held, that while according to the strict and technical rules of pleading the allegations of negligence contained in the complaint should have been met by a direct denial the allegations contained in the affirmative defenses were a sufficient denial of the allegations of the complaint that the damage was caused by defendant’s negligence, and a demurrer to said separate defenses was properly overruled.
    That a statement of facts alleged in a fourth affirmative defense which defendant claimed was sufficient to show a constructive delivery of the goods prior to any damage and that the risk thereafter was plaintiff’s was merely an argumentative denial of the allegations of the complaint that the goods were not delivered and that they were damaged by defendant’s negligence, and the demurrer to said affirmative defense should have been sustained.
    
      Appeal by the plaintiff from an order of the City Court of the city of New York, overruling a demurrer of the plaintiff to certain defenses set up in the answer.
    Joseph Niechia (Geo. P. Foulk, of counsel), for appellant.
    Convers & Kirlin (John M. Woolsey, Charles T. Cowenhoven, Jr., and Robert S. Erskine, of counsel), for respondent.
   Lehman, J.

The plaintiff in his complaint has set forth two causes of action in which he alleges the delivery to the defendant as common carrier of certain goods and the failure of the defendant to deliver the goods in the same condition in which the same had been received by it for delivery and in the condition in which the same was at the time of acceptance for transportation and carriage as aforesaid.” Both causes of action also set forth allegations of negligence, both general and specific, which it is claimed caused the damage. The answer denies the allegations of the complaint and then sets forth four alleged affirmative defenses. The plaintiff has demurred to each of these defenses and now appeals from the order overruling these defenses.

Since the complaint sets forth causes of action against the defendant as a carrier the carrier must be permitted to .show that under the terms of the contract of carriage it was liable only for negligence. The first three separate defenses set forth three clauses of the contract, which, under appropriate circumstances, would limit the liability to damages caused by negligence. If these defenses also contain allegations sufficient to show that the appropriate circumstances existed and that the damage, if any, was not caused by any negligence of any person, for whom the defendant is responsible, then obviously the separate defenses are sufficient. All these separate defenses clearly allege that the conditions existed, under which the defendant’s liability was to be limited to responsibility for negligence; they all affirmatively state that the damage, if any, occurred after these circumstances arose, and they all fairly allege that it occurred without negligence on the part of the defendant, its servants or agents. It is true that according to the strict and technical rules of pleading the allegations of negligence contained in the complaint should have been met by a direct denial instead of by an affirmative allegation that any .damages which the fruit may have suffered were not caused by nor contributed to in any manner whatsoever, by any fault or negligence on the part of the Steamship Virginia, her owner, the defendant, its agents or servants or any one for whom it or the steamship may have been responsible,” but in my opinion it would be straining even the strict and technical rules of pleading" beyond all reason if we were to hold that these allegations were merely statements of facts inconsistent with the allegations of the complaint and therefore constitute no denial. It seems to me that fairly construed these allegations contained in the affirmative defense are a sufficient denial of the allegation of the complaint that the damages were caused by the defendant’s negligence. It is very frequently a very difficult matter for a pleader to determine whether to run the risk of having a denial which he has incorporated in an affirmative defense stricken out as unnecessary to his affirmative defense or of having the defense attacked on the ground that it is insufficient without such a denial, and we should not add to these difficulties, by holding that where a pleader affirmatively sets forth in a separate defense seeking to limit his liability to negligence that he has been guilty of no negligence which contributed to the damage, he yet has admitted such negligence by not directly denying the allegations of negligence as contained in the complaint.

It is also urged that the words, “ or any one for whom it or the steamship may be responsible ” are a conclusion of law. Conceding for the sake of argument, that they are a conclusion of law, then we may disregard them. The defendant is obviously responsible for the negligence of its agents and servants and is responsible for the negligence of no other persons. The agents and servants of the defendant necessarily in law include the master, agents and managers of its ship and the allegations of the separate defense, therefore, completely. cover the negligence of all persons for whom the defendant might be responsible, even if we disregard the words to which objection is taken. It follows that the demurrer to the first three separate defenses were correctly overruled.

It seems to me, however, that the demurrer to the fourth separate defense should have been sustained. Its affirmative allegations are clearly insufficient to meet the allegations of the complaint that the damage was caused by the defendant’s negligence. It merely states facts which the defendant claims are sufficient to show a constructive delivery of the goods prior to any damage and that the risk thereafter was the plaintiff’s risk. Aside from the fact that it is in my opinion extremely doubtful whether, standing alone, this defense states sufficient facts to show that there was a constructive delivery or that the goods thereafter were really at the consignee’s risk, it is not an affirmative defense but merely an argumentative denial of the allegations. of the complaint that the goods were not delivered and that they were damaged by the defenclant’s negligence. It follows that the demurrer to this defense should have been sustained.

Order should he modified to the extent of sustaining the demurrer to the fourth separate defense and, as modified, affirmed, without costs to either party.

Delany and Whitaker, JJ., concur.

Order modified, and, as modified, affirmed, without costs.  