
    Ethel Leonorovitz, Plaintiff, v. Mart Ott, Defendant.
    (Supreme Court, Kings Special Term for Trials,
    May, 1903.)
    Animals — Liability of the owner of a vicious dog to a trespasser — Defense not demurrable for not containing denials.
    It is not an affirmative defense to a complaint against the defendant, for knowingly keeping a vicious dog which when at large bit the plaintiff, for the defendant to answer that the plaintiff was a trespasser upon the defendant’s premises at the time when the plaintiff was bitten.
    Denials of allegations of the complaint being no part of a defense it cannot be held bad on demurrer for not containing denials.
    Trial of an issue of law raised by a demurrer to matter pleaded as an affirmative defense to the complaint.
    The complaint is that the defendant knowingly kept a vicious dog, and allowed it to be at large, and that it bit the plaintiff.
    After what purport to be denials, comes the following, pleaded as a defence, in the answer:
    
      “ That at the time and place mentioned in the complaint the plaintiff was a trespasser, and unlawfully upon the premises of ■the defendant, and that whatever damages or injuries she sustained, if any, were the result of the wrongful, negligent and unlawful act of plaintiff ”.
    
    
      Isaac Sargent for plaintiff.
    Howard C. Conrady for defendant.
   Gaynor, J.:

The decision in Saleeby v. Central R. Co., 40 Misc. Rep. 269, is cited, in which it is said: “ I think the affirmative defenses are further faultily pleaded in that they fail to contain any sufficient denial of the allegations of the complaint, which, under such conditions, must, for the purpose of the demurrer, he taken as true.” This is so strange that I must regard it as in some way a mistake of the editor or printer. Denials of allegations of the complaint cannot be a part of a defence. If put there they would be struck out on motion. A defence can consist only of “ new matter ”, i. e., matter outside of any issue raised, or that may be raised by a denial, and which, taking all of the allegations of the complaint to be true, is nevertheless a defence to the action, such as payment, a general release, fraud, the truth of a libelous publication, etc. (Code Civ. Proc., § 500; Burkert v. Bennett, 35 Misc. Rep. 318). Its sufficiency has always to be tested on the assumption that all of the allegations of the complaint are true. How odd, then, to suggest that a defence may be deemed bad on demurrer for having no denials in it.

That the plaintiff was a trespasser on the defendant’s premises when bitten is no defence. One who allows a biting dog to go at large, knowing it to be such, is liable if it bite a trespasser (Loomis v. Terry, 17 Wend. 496; Kelly v. Tilton, 3 Keyes, 263). The remaining words of the so called defence, viz., “and that whatever damages or injuries she sustained, if any, were the result of the wrongful, negligent and unlawful act of the plaintiff”, seem to refer to the plaintiff’s trespass. If not, they are mere hard words, which amount to nothing in pleading, as much as some learned pleaders seem to love them.

The demurrer is sustained.  