
    Daniel Driscoll, Respondent, v. The Brooklyn Union Elevated Railroad Company and The Brooklyn Heights Railroad Company, Appellants.
    
      Pleading, in an action to enjoin the operation of an elevated railway—a failure to deny an allegation of the complaint, that the railway company never acquired the easements exercised by it-—independent sepm'ate defenses that easements were ■ acquired are not in such case available.
    
    The complaint in an action brought by an owner of .property abutting on a city street to enjoin the maintenance and operation of an elevated railroad in front of his premises alleged: “IX. That none of the several owners of said premises at any time consented to the erection of said structure or the running of said trains, and the defendants have never acquired the easements, property right or ownership of the plaintiff in said street.”
    The answer did not deny this allegation, but alleged, for a separate defense, that plaintiff’s mother, assuming to act as executrix of the will of the father of the plaintiff and as plaintiff’s guardian, plaintiff then being one of the owners of the premises, executed and delivered to the then owner of the elevated railroad, one of the predecessors of the defendants, a release conveying a perpetual right to maintain the elevated railroad structure and to operate the railroad thereupon.
    The answer also alleged for a further separate defense that the plaintiff, then over the age of twenty-one years, was a subscribing witness to the release and knew full well its. contents; that a valuable consideration was paid for the release to the plaintiff’s mother; that the plaintiff has never repudiated thq assumed authority of his mother to execute the release, and has ratified and confirmed the same, and that the plaintiff is now estopped from denying that the defendants possess the rights and easements in the street.
    The action was tried upon an agreed statement of facts under a stipulation that all of the allegations in the complaint were true, except as to certain matters relating tp the plaintiff’s damage contained in the 12th paragraph thereof.
    
      Held, that paragraph IX of the complaint not having been denied, must, under section 522 of the Code of Civil Procedure, be taken as true and that the separate defenses averred in the answer were, therefore, unavailable tp the defendants.-
    Appeal by the defendants, The Brooklyn Union Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of December, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      
      Charles L. Woody, for the appellants.
    
      Cyrus V. Washburn [George W. Sickels with him on the brief], for the respondent.
   Hooker, J.:

This is an ordinary action in equity to enjoin the maintenance and operation of an elevated railroad in one of the streets of the borough of Brooklyn, in front of the premises owned by the plaintiff. Among the allegations of the complaint is the following: “IX. That none of the several owners of said premises at any time consented to the erection of said structure or the running of said trains, and the defendants have never acquired the easements, property right or ownership of the plaintiff in said street.” Nowhere in the answer are the allegations of this paragraph in the complaint in any manner controverted, and under the provisions of section 522 of the Code of Civil Procedure those allegations must be taken to be true. That section reads as follows: “Each material allegation of the complaint, not controverted by the answer, and each material allegation of new matter in the answer, not controverted by the reply, where a reply is required, must, for the purposes of the action, be taken as true. But an allegation of new matter in the answer, to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance as the case requires.” For a separate defense the answer alie;,-, .,r that after the erection of the elevated structure in the street, and before the commencement of the action, the plaintiff’s mother, assuming to act as executrix of the will of the father of the plaintiff and as plaintiff’s guardian, plaintiff then being one of the owners of the premises, executed and delivered to the Brooklyn Elevated Railroad Company, the then owner of the- elevated railroad, one of the predecessors of the defendants, a release conveying a perpetual right to maintain the elevated railroad structure and to operate the railroad thereupon; and for a further separate defense alleges that the plaintiff, then over the age of twenty-one years, was a subscribing witness to the release and knew full well its contents; that a valuable consideration was paid for the release to the plaintiff’s mother; that the plaintiff has never repudiated the assumed authority of his mother to execute the release, and has ratified and confirmed the same, and that the 'plaintiff is now estopped from denying that the defendants possess the rights and easements in the street sufficient to defeat plaintiff’s claim. These allegations of separate defenses, however, are unavailing to the defendants in the absence of a denial in the answer of the allegations contained in the 9th paragraph of the complaint above quoted. Marx v. Gross, decided in the New York Superior Court, General Term (2 Misc. Rep. 511), was an action for damages for the nondelivery of goods, and it was there said: The allegation of the complaint of the contract not being controverted by the answer, was to be taken as true for the purpose of the action. (Code Civ. Proc. § 522 ; Fleischmann v. Stern, 90 N. Y. 110.) For the purpose of determining the basis of the cause of action, the allegation of the answer of a contract of other terms or of a different character has no function or' effect.” Fleischmann v. Stern (supra) is to the same, effect. (See, also, Ramsay v. Barnes, 35 N. Y. St. Repr. 43; 12 N. Y. Supp. 726; 20 Civ. Proc. Rep. 84; Hand v. Belcher Mosaic Glass Co., 30 N. Y. St. Repr. 389; 9 N. Y. Supp. 738; East River Electric Light Co. v. Clark, 45 N. Y. St. Repr. 635; 18 N. Y. Supp. 463.)

The unavailability of this defense to the defendants is- enhanced by the terms of the stipulation upon which the case was tried. ■ The action was submitted to the Special Term upon an agreed- statement of facts, and it was there stipulated between the parties “ that all the allegations of the complaint are true except as to the amounts alleged in the XII paragraph of the complaint as damage for loss of rents and as to the damage to the fee value of said premises, it being hereby agreed that the fee and rental damage to said premises caused by the maintenance and operation of said railroad is the sum of six hundred dollars. Said complaint is hereto annexed and marked Exhibit ‘A.’” By this stipulation the allegation of the complaint that the defendants have never acquired the easements and property rights or ownership of the plaintiff in the street, was admitted, and they could not later be heard to claim' that they had actually acquired such easements, either through the act of Mrs. Driscoll, who assumed to release under the authority of her husband’s will, or through the estoppel of the plaintiff himself, who signed the release as a subscribing witness to his mother’s signature. Under the pleadings and the stipulation, therefore, no such issue was presented, and the judgment in favor of the plaintiff for the amount agreed upon in the stipulation was right.

The learned court at Special Term has, however, considered questions which were there deemed to have been presented in this case, and we may say upon those questions that we agree with the reasoning and conclusions reached in its opinion.

The judgment should be affirmed, with costs.

All concurred; Bartlett and Jenks, JJ., in result.

Judgment affirmed, with costs.  