
    Bridget M. Kelly, Appellant, v. John Henry Theiss, Respondent.
    (City Court of New York, General Term,
    February, 1898.)
    A note executed, by an alleged firm — Proof of partnership — Effect, upon a general denial, of allegations of a subsequent separate affirmative defense.-
    Where the proof made in an action upon a note tends to show that, although executed in the name of the firm, it was made by only one member thereof with whom the plaintiff dealt, her failure to prove the partnership, denied, under a general denial, by the defendant who • did not execute the note, defeats .the action, nor is her failure to make such proof of partnership excused because, in a subsequent separate defense, the same defendant alleged in substance that, at about the time alleged in the complaint, he gave the plaintiff a similar note executed in the firm name, and that this was* not to be paid until he was able to pay it, as allegations, contained in a subsequent separate affirmative defense, are not available as admissions, nor can they affect the force of the general denial contained in the prior defense.
    • Appeal from a judgment entered upon an order dismissing the plaintiff’s complaint as against this defendant-respondent at the conclusion of a trial before the court and a jury.
    A. J. Westermayr, for appellant.
    Fromme Brothers, for respondent.
   O’Dwyer, J.

This action was brought by the plaintiff against the' respondent and others upon a complaint wherein it was alleged-that:

“George Theiss” and “John Henry Theiss” (the respondent) were copartners'in business under the firm name and style of ■*“ George Theiss & Brother,” and that On the 23d day of June, 1896, the said George Theiss and John Henry. Theiss made and ■executed a promissory note, a' copy of which is set forth in the -complaint and signed “ George Theiss & Bro.”

The respondent made answer denying these allegations in toto, and putting in issue the material allegations of the complaint.

The respondent, after these denials and for a separate and distinct answer and defense, alleged “ that he did heretofore make a promissory note signed G-. Theiss & Brother ” to the order of the ■ plaintiff, dated at or about the time mentioned in said amended complaint, and for about the amount mentioned therein, but that it was then and there agreed by and between the plaintiff and this defendant that the same was to be formally executed as being payable on demand, but with the distinct understanding by and between this plaintiff and the defendant, that the same was payable only when this defendant was financially in condition, or able to pay, and that said defendant has not since the execution of said note, nor is he now, able to pay the same, and that, therefore, this action has been prematurely brought.”

On the trial, the plaintiff testified that her dealings were with George Theiss, and no proof was introduced showing any dealings with the respondent, or that he was the copartner of George Theiss.

At the close of the case the complaint was dismissed as against the defendant, and from the judgment entered thereon, this plaintiff appeals.

The note in suit having confessedly been signed by George Theiss alone, John Henry Theiss not having been in any way connected with the note, and there being absolutely no proof that there was any copartnership between George. Theiss and this respondent, although the complaint so alleged, the motion to dismiss the complaint was properly granted.

It is urged, however, by-the appellant, that proof of the co-partnership between George Theiss and the respondent was rendered unnecessary by the answer of the respondent, to-wit: the matter contained in the allegations setting up a separate and distinct answer and defense.

Hnder the system of pleading provided by the Code of Oivil Procedure, a defendant is at liberty to set forth in his answer such defenses as he may have, whether inconsistent or not (Societa Italiana v. Sulzer, 138 N. Y. 472; Code Civ. Pro., § 507); and while the complaint may be aided, or proof upon the part of the plaintiff be dispensed with, through admissions, or failure of denial in the answer, when a denial only is the purport of the defense, such is not the result where the allegations of the complaint are placed in issue by the answer and a separate defense is set up which proceeds upon the avoidance of liability, although upon the same state of facts.

The issue tendered by the complaint as to copartnership of George Theiss and John Henry Theiss,” and the making and .delivery of the note in suit by that copartnership was accepted by the answer, and the denial of the fact called upon the plaintiff to prove it, since it was essential to the cause of action.

The allegations of that fact by the defendant for the purposes of the separate defense did not affect the force of the denial as framing the issue (Brady v. Hutkoff, 13 Misc. Rep. 515; 34 N. Y. Supp. 947), and since the inconsistency between the different defenses did not invalidate the answer as to any particular one (Goodwin v. Wertheimer, 99 N. Y. 149; Ross v. Duffy, 12 N. Y. St. Repr. 584; Societa Italiana v. Sulzer, 138 N. Y. 472), the defendant was entitled to- rely upon his general denial and abandon his separate defense, as far as proof of these particular facts are required. Balmford v. Grand Lodge, 19 Misc. Rep. 1; 42 N. Y. Supp. 881.

■ An answer may contain a direct or an implied admission of some fact alleged in the complaint. The admission is implied. when the fact alleged in the complaint , is not denied in . the ánswen.- It- is direct when the admission is¡ made in terms. Either form of admission of- an allegation contained in the complaint is conclusive upon a defendant so, long as it remains in the pleading and the plaintiff can point to it as conclusive proof of -the truth of his allegation.

An allegation, in the answer setting up an affirmative defense, which has no reference to and does not admit any allegation of the complaint, is of an entirely different nature. Such an allegation is not an admission, contained in a pleading, which is conclusive so long as it remains in the record. An admission which ;so concludes a party admits something alleged or set forth in the-pleading to which the pleading containing the admission is answer; Ferris v. Hard, 135 N. Y. 354.

' The answer in the case át bar-denied the existence of a co-partner^ ship as alleged and of the -making and the delivery by that co-partnership of the note in suit.

The separate defense alleged attempted to describe a note made-by the respondent, with a special agreement affecting its payment, ■ This was not an admission of the allegations of the complaint; and as those allegations were denied and no proof offered in their support, the motion to' dismiss the complaint was properly granted, and the order and judgment appealed from should be affirmed, With costs. . ■

- McQabthy and Scotchman, JJ., concur.

. Judgment affirmed, with costs;  