
    Nicholas T. Clarkin, Plaintiff, v. The City of New York, Defendant.
    (Supreme Court, Kings Special Term,
    June, 1915.)
    Pleading — allegations of complaint when regarded as admitted — denial— dismissal of complaint.
    Allegations of a complaint not denied in a separate defense will be regarded as admitted even though denied elsewhere in the answer.
    If a separate defense, complete in itself without a denial, is established, the defendant is entitled to a dismissal of the complaint though every allegation thereof be admitted or proved.
    A complaint alleged: (1) the incorporation of the defendant, (2) the passing by plaintiff of a civil service examination, (3) his appointment as inspector of lamps and gas, (4) the classification of that position by the civil service commission without limitación of salary, (5) the fixing, thereafter, of plaintiff’s salary at $2,250 per annum, (6) the appropriation by the board of estimate and apportionment of sufficient funds therefor, (7) the payment to plaintiff of his salary at certain rates under $2,250 per annum, and (8) the due presentation and refusal of plaintiff’s claim. The answer by four paragraphs of denial put in issue all but paragraphs 1 and 2 of the complaint and also set up eight separate defenses as follows: (1) payment, (2) waiver and estoppel, (3) denial that plaintiff’s salary was ever fixed at a rate exceeding $1,800, (4) that plaintiff’s claim, in excess of the amount paid to him, would exceed appropriations, (5) failure of the municipal civil service commission to certify any pay-roll crediting the plaintiff with pay at the rate of $2,250, (6) failure of the plaintiff to proceed by mandamus, (7) accord and satisfaction, and (8) the Statute of Limitations. Held, that the separate defenses numbered 2, 5, 6, 7 and 8 were complete in themselves without the aid of any denials; that the fourth defense was inconsistent with the sixth paragraph of the complaint which might properly be denied.
    That by not moving to strike out a repetitious clause from the second and third defenses plaintiff admitted that they, without appropriate denials, would be insufficient.
    
      Application under section 545 of the Code of Civil Procedure, to strike out as irrelevant and redundant a certain paragraph of the answer.
    Gustav Gunkel, for plaintiff.
    Frank L. Polk, corporation counsel (Edward S. Malone, of counsel), for defendant.
   Clark, J.

Application, under section 545 of the Code of Civil Procedure, to strike out as irrelevant and redundant a certain identical paragraph (occurring in each of six separate defenses) repeating paragraphs I, II, III and IV of the answer.

The complaint contains eight paragraphs setting up (1) the incorporation of the defendant, (2) the passing by the plaintiff of a civil service examination, (3) his appointment as inspector of lamps and gas, (4) the classification of that position by the civil service commission without limitation of salary, (5) the fixing, thereafter, of plaintiff’s salary at $2,250 per annum, (6) the appropriation by the board of estimate and apportionment of sufficient funds therefor, (7) the payment to plaintiff of his salary at certain rates under $2,250 per annum, and (8) the due presentation and refusal of plaintiff’s claim.

The answer contains four paragraphs- of denial, putting in issue all but paragraphs I and II of the complaint; and also sets up eight separate defenses, namely: (1) payment, (2) waiver and estoppel, (3) denial that plaintiff’s salary was ever fixed at a rate exceeding $1,800, (4) that plaintiff’s claim, in excess of the amount paid to him, would exceed appropriations, (5) failure of the municipal civil service commission to certify any pay-roll crediting the plaintiff with pay at the rate of $2,250, (6) failure of the plaintiff to proceed by mandamus, (7) accord and satisfaction, and (8) the Statute of Limitations.

There can be no substantial difference of opinion concerning the rules under which this application should be decided. A defense sets up new matter as a plea in bar. In determining the sufficiency of a defense all allegations of the complaint not denied in such defense, even though denied elsewhere in the answer, are regarded as admitted. Of the relevancy of denials in a particular defense, the test is whether such denials are inconsistent with any of the allegations of the complaint. If so, in pleading that defense, the defendant not only may, but should, within the limits of such defense, deny all such inconsistent allegations of the complaint. Mendelson v. Margulies, 157 App. Div. 666. All other. denials, that is, all denials of consistent allegations, are irrelevant and redundant, and will be stricken out upon the motion of a party aggrieved thereby. Blaut v. Blaut, 41 Misc. Rep. 572. A plaintiff loses the right to demur to a defense which contains denials (Uggla v. Brokaw, 77 App. Div. 310), and by such loss a 'plaintiff is aggrieved within the language of the section. Stieffel v. Tolhurst, 55 App. Div. 532.

Testing the answer by the foregoing rules, it is found that the separate defenses numbered second, fifth, sixth, seventh and eighth are complete in themselves without the aid of any denials whatever. Each of such defenses, if established, entitles the defendant to a dismissal of the complaint, even though every allegation of the complaint be admitted or proved.

The fourth defense, paragraph thirteenth of which alleges that the payment of plaintiff’s claim would be in excess of the appropriation, is, however, inconsistent with paragraph VI of the complaint, which alleges that an appropriation was duly made. In the fourth defense, therefore, paragraph VI of the complaint may properly be denied.

By not moving to strike the repetitious clause from the first and third defenses, the plaintiff admits, consistently, that those defenses, without appropriate denials, would be insufficient.

An order will be granted (1) striking out paragraph thirteenth of the answer, with permission to the defendant to substitute, in lieu thereof, an appropriate denial of paragraph VI of the complaint; that is to say a denial, or a denial upon information and belief, or a denial of any knowledge or information sufficient to form a belief; (2) striking out paragraphs eighth, .fifteenth, seventeenth, nineteenth and twenty-first of the complaint. Settle order on notice, providing for the service, within ten days, of amended answer.

Ordered accordingly.  