The 144th section of the code of procedure provides that “every material allegation of new matter in the answer, not specifically controverted by the reply, as prescribed in section 131, shall, for the purposes of the action, be taken as true.” The statute must be confined *359•to allegations offact and cannot refer to an averment of the legal construction or effect of written instruments; much less can it be applied ■to the intention or meaning of the parties, when they execute a written contract. To adopt the construction claimed by the Defendant’s counsel, would be to subvert, not only the rules of pleading, but the plain■est principles of justice. Instead of determining what the parties did, we should spend our time in the vain attempt of endeavoring to ascertain what they intended to do. That part of the answer which relates to the meaning of the agreement must be deemed an immaterial allegation, and as the Plaintiff is not permitted to demur, it must be disregarded at the trial.
Nor can I yield to the argument that this answer is to be deemed equivalent to an allegation of mistake, or surprise, in the execution of the agreement, so as to entitle the Defendants to have it modified or avoided on either of those grounds. Whether, under the present system, matters which have heretofore been deemed of purely equitable cognizance, may now be set up as a defence to an action founded upon common law principles: and if equity is thus permitted to over-ride the legal rights of parties in all our courts, whether we are any longer the Supreme Court, having “jurisdiction in law and equity,” mentioned in the Constitution, are questions which need not now be discussed. It is sufficient for this case to say that the Defendants have not relied upon any distinct allegation of mistake or surprise which would entitle them to relief on that ground in a Court of Equity, Motion denied.