
    Andrew S. Williams, Plaintiff, v. Frank S. Williams, Defendant.
    (Supreme Court—Herkimer Special Term,
    September, 1895.)
    A plaintiff may, in his reply, controvert all the allegations of the answer set up by way of counterclaim, or any portion of such allegations. Where it does not clearly appear from the language of the reply whether it is intended to deny all the allegations of the answer in relation to counterclaims, or only a part thereof, the remedy is not by demurrer, hut by motion to make the reply more definite and certain.
    Demurrer to reply.
    Plaintiff’s complaint is upon a promissory note for fifty dollars, and also upon a lease executed by the defendant for a parcel of ground situated in the town of Kirkland, in which lease the defendant undertook to pay the yearly rent of fifty dollars and one-half the taxes.
    
      Defendant in an amended answer to the complaint sets up by way of counterclaim to the alleged causes, of action that the defendant furnished to the plaintiff for his benefit and at his request lodging, stabling, board, food and provisions of the value of $123 ; and also, by way of further counterclaim,'that 1 the defendant, before the commencement of this action, and prior to September .8, 1893, furnished board and'lodging at the request of. the plaintiff, and that an account therefor was rendered in writing to- the plaintiff, who claims that there is eighty dollars due the defendant thereon. The answer, by way of a third counterclaim, alleges that between the 8th of September, 1893, and the 6th of April, 1894, the defendant furnished to the plaintiff, at his request, food, provisions, board and lodging -T that the same were of the amount and value of sixty dollars; and defendant’s answer demands judgment ■ against the plaintiff for the sum of $123, with interest.
    ■Plaintiff served a reply, which was verified in July, 1895, which contained the following language: “ The plaintiff, for his reply to defendant’s counterclaim herein, alleges as follows : First. He denies the said counterclaim and each and every part thereof and the whole thereof.”
    To that reply the defendant demurs “ on the ground that the said attempted traverse is insufficient in law upon the face thereof.” ‘
    
      J. W. Cummings, for plaintiff.
    
      T. I. Gross and F. S. Williams, for defendant. /
   Hardin, J.

In section 519 of the Code it is provided,, viz.: “The allegations of a pleading must be liberally construed, with & view to substantial justice between the parties.” Ford v. Ames, 36 Hun, 572.

Probably the plaintiff, when the reply was drawn, assumed that the defendant’s answer, in effect, set up -a counterclaim, and that the same was stated in different language in the different counts of the answer. . A liberal construction of the language of the reply seems to justify a conclusion that the plaintiff by the nse of the language found in the reply intended to controvert all the allegations contained in the defendant’s answer by way of counterclaim. The plaintiff in his reply avers that he denies “ the whole of the defendant’s counterclaim.” The plaintiff was at liberty to deny a part of the counterclaim or to deny the whole thereof. Section 493 of the Code authorizes the defendant to demur to a reply “ on the ground that it is insufficient in law upon the face thereof.” It is contended in behalf of the defendant that the reply does not controvert all the allegations of the answer set up by way of counterclaim. It was the privilege of the plaintiff to controvert, in his reply, all of the allegations of the answer set up by way of counterclaim. It was also the right of the plaintiff to controvert, by way of reply or traverse, any of the essential allegatioñs of the defendant’s answer containing the counterclaim. The reply, according to the contention of the parties, must be read either to deny all the allegations of the answer so far as it relates to counterclaim or some portion thereof. It is contended by the defendant that the reply is indefinite and uncertain, inasmuch as it is not clear from its language whether the intention was to traverse the whole of the allegations as to counterclaims or some part thereof.

In Pfaudler Process Fermentation Company v. McPherson, 20 N. Y. St. Repr. 473, it was said by Barker, J., in the course of the opinion delivered in that case, viz.: If, by the form of the denial used, it is left in doubt whether the party-intends to dispute the fact charged or only the circumstances attending the fact against him, as, for instance, the time and place of making a contract set up in the pleadings, and not the making of a contract of the- form and substance of the one alleged, it is a bad or defective answer for the reason that, in legal phrase, it is pregnant with the admission that the fact-alleged is in part true.” Later on in the course of the opinion the learned judge said : Ambiguity in pleading always constituted a fault, and when that is the only objection to be urged against the pleading, then the party affected thereby, and who is in doubt as to its meaning, may require by a motion ' that th'e pleading be made more certain and definite, as provided by the Code and the rules and practice of the court. § 546. It is provided, where one or more denials or allegations contained in the pleading are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may requite the pleading to be definite and certain by amendment. * * * As it is manifest that the defendants intended to deny some of- the averments relative to the making of the contract, we think the plaintiff’s proper remedy was by motion to have the answer made more definite and' ■certain, and as that, mode of relief was not resorted to we think the referee had the power to allow the amendment under the provisions of sections 539 and 723.” Applying the principle enunciated in the case from which the quotation has been made, it Would seem that if the '''defendant- was- in doubt as to whether the - language used by the plaintiff in the reply was definite and certain, conveying positive denial of all of the allegations contained in the answer relating to counterclaims, or a denial of only some portion thereof, the remedy of the defendant was not by demurrer, but by motion to make the language- of the reply more definite and certain.

In Del Valle v. Navarro, 21 Abb. N. C. 136, near the close of the opinion, it was said that the objection that the reply is not sufficiently definite or certain, cannot be taken by ' demurrer. In such case the proper remedy is by motion.”

Cook v. Warren, 88 N. Y. 37, differs from the case in hand. There the defect was. in the complaint," and it was held that, by reason of that defect in the complaint, the demurrer was well taken.

The foregoing views lead to the conclusion that the demurrer should be overruled and judgment ordered for the plaintiff on the demurrer, with costs, with leave to defendant to withdraw the demurrer.within twenty days-on payment of costs.. See Del Valle v. Navarro, 21 Abb. N. C. 145.

Demurrer' overruled and judgment ordered for plaintiff, with costs, with leave to defendant to withdraw, demurrer within twenty days on payment of costs.  