Clark v. Dillon

Beach, J.

[After stating the facts as above.]—The defendants’ counsel asked the trial court to charge the jury that, before the plaintiff could recover, they must determine the defendants made the excavation as matter of fact. No direct evidence was given of the fact. The learned judge held there was no denial of the allegations upon the subject in the complaint. The sufficiency of the pleading to raise such an issue.is the question presented by this appeal.

An answer must contain a general or specific denial of each material allegation of the complaint controverted by the defendant (Code Civ. Pro., § 500, subd. 1). This is a plain rule, by which the pleading must be judged, and commends itself by simplicity, directness, and the clearness resulting from adherence by the pleader. Under the text of the answer, the denial is problematical, leaving for opinion what should not be matter of doubt. Neither court nor opposing counsel should be called upon to speculate upon what allegations of a complaint have been specifically admitted or denied, and what may or may not be qualified, is a proposition whereon there may be great divergence of opinion. This mode of denial has been heretofore condemned, and is so loose and unsatisfactory as to warrant the court, as was done here, in wholly disregarding its *112claimed effect. Its use by the pleaders is for a drag-net, to include what may possibly have- been otherwise omitted. If a positive averment of a material fact is not worthy of a direct denial, the court is warranted in assuming that no issue is made upon it (Miller v. McClosky, 9 Abb. N. C., 303 ; 1 Civ. Pro., 257 ; Hammond v. Earle, 5 Abb. N. C., 105).

The judgment should be affirmed, with costs.

Charles P. Daly, Ch. J., and Van Brent, J., concurred.

Judgment affirmed, with costs.*

The judgment entered upon this decision was affirmed by the Court of Appeals, November 25th, 1884 (see 97 N. Y. 370).