
    State of South Dakota, App’lt, v. John T. McChesney et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 14, 1895.)
    
    Pleading — Answer—J cinder.
    A denial and defense of new matter, while they may be pleaded in the same answer, cannot he joined in the same defense.
    Appeal from an order, denying a motion to strike out from the affirmative defenses in the answer certain specific denials as redundant.
    
      John S. Melcher, for app’lt ; Charles A. Deshon, for resp’t.
   Per Curiam.

— This action was begun February 11, 1895,- to recover on a bond executed by the defendant as surety for William W. Taylor, the treasurer of the plaintiff. It is alleged that the treasurer is a defaulter to the state in a sum exceeding the penalty of the bond. The answer does not contain a general denial, — a denial of all the allegations of the complaint, — but there are several specific denials set forth in the first defense. In all the other defenses, two to eight inclusive, new matter is set up as defenses ; and in all of them the following words appear, which the plaintiff moves to strike out: “ Reiterates the denials of the •first defense, and alleges.” Then follows the new matter. An affirmative defense, not including a counterclaim, necessarily admits and avoids the cause of action set out in the complaint, and .a denial, general or specific, cannot be included and form a part of such defense. A denial, general or specific, may be pleaded in the same answer as a separate defense, but not as a part of a plea of new matter. “ It is elementary that a defense of new matter should be pleaded; and, as new matter must of necessity be a distinct defense from a denial, it follows that it cannot properly be associated or mingled up with denials, general or specific, in ■one paragraph or plea.” Pom. Code Rem. § 690. By permitting a general or specific denial to be joined with an affirmative defense, a plaintiff would be effectually deprived of the right to de-. mur to the new matter pleaded as an affirmative defense. In case an action should be brought to recover on a contract for the payment of money, and the defendant should plead as a separate defense that, the contracting parties being more than fifty years of age, the contract was void, and then conclude the new matter with a general or specific denial the plaintiff could not safely demur to the defense. In the case supposed, the plaintiff could move to strike out the new matter as frivolous; but, in case the new matter should require argument to show that the defense was frivolous, the validity of the defense could not be tested on motion.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.  