the damages they have sustained, as well by reason of the withholding of said premises, as of the several acts of trespass committed by said defendant, as aforesaid, in the sum of $10,000, besides their costs. S. &. V. S., Plaintiffs' Attorneys. If the plaintiffs were in doubt as to what relief they were entitled to, whether for judgment, in ejectment, or only for damages, the foregoing complaint, I have no doubt, might have been properly drawn with a double aspect, setting forth in a single cause of action the entry upon the street, the digging and embankments, and destruction of the street, and its appropriation by defendant to the entire exclusion of the plaintiffs and the public; in other words, alleging a state of facts that would sustain a judgment either for the delivery of possession, or for damages, and conclude by asking relief in the alternative, that defendant be adjudged to deliver up the possession, &c., or that he pay damages, &c. (See Pleadings, 296; see also a complaint with double aspect, ante, No. 78, Part II., p. 328, 330, and note.) 67 PART IV. ANSWERS. (1.) DENIALS-General and SPECIFIC. (No. 1.) Absolute general denial by one of two defendants (the endorser of a note), answering separately.1 SUPREME COURT. A. B. C. D., impleaded with E. F. and G. H. The defendant, C. D., separately answering the plain To Complaint No. 4, Part III. (ante, p. 359). The answer being by the indorser of the note, he must regularly answer in this positive form, and cannot answer (as in the next precedent) by saying that "he has no knowledge or information sufficient to form a belief;" for the reason given in Fales v. Hicks (12 How., 153, and cases there cited), that the fact of the indorsement and the transfer to the plaintiff is presumed to be within the defendant's personal knowledge, and if he undertake to deny such a fact at all, he must do so positively. (See Pleadings, 440-447.) He might, however, deny the making and protest and notice, on information and belief, or knowledge thereof sufficient to form a belief, and then deny the endorsement positively. As to whether an answer denying facts presumptively within the defendant's knowledge is frivolous, or whether it is merely sham, to be shown to the court on motion to strike out the answer, see Leach v. Boynton, (3 Abbott, 1, and cases there cited; also, Plead., 596-605). tiff's complaint in this action, denies each and every allegation therein contained.1 G. F., Defendants' Attorney. (No. 2.) General denial of knowledge or information sufficient to form a belief. Title of the Cause. The defendant, in answer to the plaintiff's complaint in this action, says: That he has no knowledge or information thereof, or of any allegation therein contained, sufficient to form a belief." 1 1 The answer must be verified, if at all, by the party putting it in. If the makers and indorsers answer jointly, it must be verified by all the defendants. The cause of action against the makers and each of the indorsers is distinct; they are not united or joint, and each must defend for himself. The verification, therefore, if not made by all, is defective. (Hull v. Ball, 14 How., 305.) 2 Such a denial is sufficient, under the Code, to put the matter in issue, and to put the plaintiff upon proof of his case, as effectually as a positive denial, and it is unnecessary to go further and state, "and therefore he denies the same." (Flood v. Reynolds, 13 How., 112; Leach v. Boynton, 3 Abbott, 1.) It may be observed, however, that a denial in this form, where it is required to be verified, can very rarely be properly used, inasmuch as almost every complaint will usually contain one allegation at least, if no more, which is presumed to be within the personal knowledge of the defendant, and which, therefore, if he denies at all, should be denied positively. As to form of denial on information and belief, see Pleadings, 430-447. See also post, No. 11, page 544, and note. An answer that the defendant " is not informed and cannot state," whether or not the plaintiff was possessed, &c., is not a sufficient denial for any purpose. Elton v. Markham, (20 Barb., 348). See other examples of insufficient denials, ante, p. 30-43, and notes. (No. 3.) Qualified general denial.1 SUPREME COURT. John Maher agt. The Hudson River Railroad Company. The defendant, in answer to the complaint in this action, admits that it is a corporation, under the laws of this state, and denies each and every other material allegation therein contained.2 THOMAS M. NORTH, 1 To Complaint No. 77, Part III., ante, p. 503. 2 Though, as a general rule, a formal admission of an allegation by the answer is unnecessary and improper (see note, ante, p. 29), yet this form of a qualified general denial, that is, a denial of everything contained in the complaint, except certain parts of it, has been held to be proper. (Parshall v. Tillou, 13 How., 7.) The above answer, however, would have been in better form, had it been of "each and every allegation, except," &c., as in the next precedent. The denial should not have been qualified by the word "material.” Such a denial has been held imperfect at a recent circuit in the fourth district. (No. 4.) Another form of a qualified general denial in an action to recover the possession of real property.1 SUPREME COURT. John W. Witbeck agt. John K. Defreest.. The defendant, for answer to the plaintiff's complaint in this action, denies each and every allegation set forth in the said complaint, except that he entered into the premises mentioned and described therein, at the time therein stated, and as to that, he avers that he did so as the tenant, and in subordination to the title of one John Defreest, who was then, and for a long time before had been, and has ever since continued to be, and now is the sole and exclusive owner in fee of the same. WERNER & DE FOREST, Defendant's Attorneys. 1 To Complaint No. 73, Part III., ante, p. 495. |