Arthur vs. Brooks and others, 14 Barb. 533

By the Court, Willard, P. J. The only question before us is, whether the second answer constitutes a defense to the action. The objections pointed out by the demurrer are, 1st. That it sets up matter in avoidance, and does not admit that but for the avoidance the action could be sustained; 2d. It is hypothetical; 3d. It sets up matter in avoidance, and at the same time denies the allegation it seeks to avoid; and 4th. It is insufficient. The answer is clearly obnoxious to the three first objections. These objections render the answer bad on demurrer. (Conger v. Johnston, 2 Denio, 96. Commercial Bank v.

Sparrow, Id. 97. Boyce v. Brown, 7 Barb. 80, 85. McMurray v. Gifford, 5 How. Pr. Rep. 14. Lewis v. Kendall, 6 Id. 59, 64, 5, 6. Sayles v. Wooden, Id. 84. Buddington v. Davis, Id. 401. Anibal v. Hunter, Id. 255.) Duplicity is pointed out by the demurrer, and is a fatal objection. (Boyce v. Brown, supra.) The fourth objection is more general. It merely states that the answer is insufficient, without specifying wherein, except the three preceding objections.

In a demurrer to a complaint the code requires that it should distinctly specify the grounds of objection and unless it do so it may bé disregarded. (Code, § 145.) And it is further provided, in effect, that every objection to the complaint, not taken by demurrer or answer, shall be deemed to be waived, except the objection to the jurisdiction of the court, and that the complaint does not state facts sufficient to constitute a cause of action, (§ 148.) But in a demurrer to an answer or reply, the consequences of omitting to specify the grounds thereof, are not stated in the code. (See §§ 158,155.) It has been held to be enough to specify generally that the answer or reply is insufficient. (Anibal v.

Hunter, 6 How. 255.) The party demurring can, therefore, avail himself of any insufficiency, which goes to the merits of the pleading. In the present case, the second answer does not put in issue the assignment of the bond and mortgage to the plaintiff. It was immaterial whether the assignment to the plaintiff was for a valuable consideration or not. A gratuitous assignment would pass the title, as between the parties, and a delivery, without writing, would be as effectual as an instrument under seal.

How the answer instead of meeting the material allegation of the complaint, takes issue conjunctively upon all the circumstances alledged in the complaint. It was immaterial who paid the consideration for the assignment, or whether it was paid or not. The answer is a negative pregnant. It raises several immaterial issues, the trial of which serve only to embarrass the cause. Again; the answer does not in any shape deny the assignment. It merely affirms that the defendants say that they deny, &c. A direct and positive denial of a fact is one thing; merely saying that they deny, is quite another.

It would be impossible to assign perjury in an affidavit to such answer, upon the denial. The defendant would answer that he had not in fact denied; but had only said to some one that he had denied the averment in the complaint. [Schenectady General Term, January 3, 1853. Willard, Hand, Cady and C. L. Allen, Justices.] The latter part of the second answer argumentatively attempts to make out that the mortgage was paid, but does not assert that it has been paid.

It alledges that Brooks, one of the mortgagees, furnished the money to purchase the mortgage, and that he is the true plaintiff in interest, and the suit should have been brought in his name. It is immaterial where the plaintiff ■ borrowed or procured the money with which to purchase the mortgage. It is not alledged that Brooks was the purchaser of the mortgage, or that the mortgage was paid. The answer is bad in every aspect in which it can be viewed.

I think the order of the special term, overruling the demurrer to the second answer, should be reversed, with ten dollars costs; and that the demurrer should be allowed, with leave for the defendants to amend on payment of ten dollars costs of the special term, and ten dollars costs of the general term. Judgment accordingly.