
    JOHN G. HOFFMAN, Appellant, v. THE NEW YORK, LAKE ERIE & WESTERN R. R. CO., Respondent.
    
      Decided June 16, 1884.
    Pleading—denials, form of—Motion for judgment on pleadings—Amendment on appeal.
    
    A denial of each and every allegation of the complaint, except as admitted, qualified or explained, is not a good denial and raises no issue.
    A ruling denying plaintiff’s motion for judgment on the pleadings, in such a case, when made in due season at the opening of the trial, is to be tested on appeal by the answer as it then stood, and not as it would have been if changed by an amendment that was not granted or asked.
    But after the denial of such a motion, if plaintiff fails to make a case and his complaint is dismissed, the court on appeal in the interest of justice should allow the defective denial to be amended so as to stand as the pleader intended a general denial.
    Before Truax and Ingraham, JJ.
    Appeal from a judgment dismissing the complaint.
    
      Action to recover $2,000 damages, claimed to have been sustained by the plaintiff, consequent upon being ejected from the cars of the defendant on October 28, 1881.
    The'first paragraph of the answer “denies each and every allegation set forth in the complaint, except as herein admitted, qualified or explained.” The second paragraph admitted the first allegation of the complaint, viz.: as to incorporation of defendant, etc. The remaining paragraphs, which were numbered consecutively from the above, contained statements, that at the time mentioned in the complaint, a certain person, but whether plaintiff or not, the answer stated defendant was ignorant, was on defendant’s train, and presented an expired stop-over check, which he had obtained with knowledge of its conditions, and on being informed again thereof by the conductor and refusing to pay his fare, was expelled from the train with no more than reasonable force, etc.
    At the beginning of the trial plaintiff moved for judgment on the pleadings on the ground that there was no denial in the answer, which motion was refused.
    After the plaintiff rested his case, the court dismissed the complaint on the ground that a cause of action had not been shown.
    
      Edward S. Hatch, for appellant.
    The plaintiff was entitled to judgment on the pleadings. The denial contained in the answer is not authorized by the Code, and no issue is raised on it (Luce v. Alexander, 4 Civ. Pro. 428 ; Clark v. Dillon, 4 Id. 245 ; Leary v. Boggs, 3 Id. 227). There being no sufficient denial of the allegations of the complaint for the purposes of the action, the complaint is admitted (Code Civ. Pro. § 523 ; Swinburne v. Stockwell, 58 How. 312). There is no new matter in the answer constituting a defense or counter-claim (Radde v. Ruckgabe, 3 Duer, 684). There is no counter-claim, for that is apparent on the pleading itself.
    
      Abbett & Putter, for respondent.
    The first paragraph of the answer is a good denial (Calhoun v. Hallen, 25 Hun, 
      155; Allis v. Leonard, 46 N. Y. 688; 22 Alb. L. J. 28 ; Youngs v. Kent, 46 N. Y. 672; 1 Bliss Code, 2d ed. 306, note 1). But assuming that the denial is not good, the other portions of the answer comply with subdivision 2 of section 500, and contain a statement of new matter constituting a defense. The answer alleges, beginning at paragraph III., the facts under which the plaintiff rode on the cars of the defendant, and these fact show that the plaintiff is not entitled to recover (See Youngs v. Kent, 46 N. Y. 673).
    After judgment, amendments will be allowed for the purpose of sustaining the judgment (See case 2 Bliss Code, 2d ed. 618, note g). Upon appeal to the general term the court may treat the pleading as having been amended so as to conform to the facts proved, in any respect in which the court ought clearly to allow an amendment upon application at special term (Foote v. Roberts, 7 Robt. 17; 1 Bliss Code, 2d ed. 620, note h).
    
   By the Court.—Truax, J.

The motion for judgment on the pleadings, made by the plaintiff at the commencement of the trial, should have been granted. The answer does not contain the general or specific denial of the allegations of the complaint required by section 500 of the Code of Civil Procedure. The motion was made in due season, and the ruling must be tested by the answer as it then was, and not by the answer as it would have been if it had been changed by an amendment that was not asked for or made (Tooker v. Arnoux, 76 N. Y. 397). As the pleadings then stood, and now stand the plaintiff was entitled to judgment.

But the evidence offered by the plaintiff on the trial does not entitle him to a judgment (Elmore v. Sands, 54 N. Y. 512 ; Townsend v. Cant, 56 Id. 295). He failed to prove a cause of action, and as the court at trial term, could have amended the answer so that it would have contained what the pleader intended it to contain—a general denial. We think that in the interests of justice the defendant should be allowed to amend its answer, nunc pro tunc, by striking out the words “ qualified or explained ” in the first paragraph. This privilege is given the defendant on its stipulating to satisfy the judgment heretofore entered against the plaintiff. On filing this stipulation the judgment will be affirmed without costs to either party. If the defendant do not give the stipulation above mentioned the judgment will be reversed with costs to the appellant to abide the event.

Ingraham, J., concurred.  