To maintain the action, it was necessary for the plaintiff to aver and prove that he fell into the excavation which the defendant had made in the street, and it was also essential that the facts should show that he was not himself chargeable with negligence or any want of proper care. Both particulars are alleged in the complaint in separate propositions. The defendant had a right to deny the matters stated in the complaint generally or specifically. (Code, § 149.) If any material allegation of the complaint *Page 124 was left uncontroverted in the answer, it was to be taken as true. (§ 168.) If the plaintiff verifies the complaint by his oath, the defendant must verify the answer in the same way. (§§ 156, 157.) Under the permission to put in a general denial, the defendant might have answered in a way which would be equivalent to the former plea of the general issue, if he could swear to such a defence; but because this could not be safely done, or for some other reason, the defendant in this case undertook to answer specifically. It was, therefore, necessary for the defendant to answer whether the averment that the plaintiff had fallen into the ditch was true, or to deny sufficient knowledge or information upon that point to form a belief. (§ 149.) No want of knowledge or information is stated in the answer, and if the defendant has failed to deny this allegation, it is left uncontroverted. The answer avers that the plaintiff did not fall in without fault or want of care on his part This is not a denial that he did fall in. It is an implied admission that he did, but that it was not done under the circumstances alleged. But it is enough for the plaintiff's purpose that it is not a denial. To show it is not a denial of the precise fact which the defendant was called upon to answer, let us suppose that the action was against a natural person who happened to be present at the accident which befel the plaintiff; and suppose, further, that the case was such that he might well have entertained the belief that the plaintiff was wanting in circumspection. The plaintiff, desirous of availing himself of the defendant's admission of the principal fact, and being, we will suppose, unable to prove it in any other way, swears to a complaint containing the allegations in the one before us. The defendant might put in and swear to the answers contained in this record, without making the admission required, and without exposing himself to be questioned for perjury. If indicted for falsely swearing that the plaintiff did not fall into the excavation, when in truth he saw him so fall with his own eyes, *Page 125 he could say with perfect truth that he did not swear to the contrary; that he did not, on oath, deny the general fact of his falling in at all, but that by a strong implication he admitted it.
But it is said the plaintiff should have moved to compel the defendant to make his pleading more definite and certain, by amendment, according to § 160. This depends upon the consideration whether the answer as it stands is, in any respect, indefinite or uncertain. I think it is neither. The defendant had a clear right to waive any controversy respecting the simple fact of the plaintiff's fall, and to limit the issue to the question whether he was at the time in the exercise of proper care. This he has done in language quite appropriate to set forth that line of defence. It may very well be that those concerned in defending the action misunderstood the effect of the answer. If so, it was for the defendant to ask leave to amend it upon terms. The plaintiff is not to be charged with laches, because he understood it correctly and acted upon that understanding.
It is essential to apply to pleadings, under the Code, the common principles of literary interpretation. The disuse of established forms and technical language has led to much vagueness and uncertainty. But pleadings are still, in terms, required to be in ordinary and concise language. To secure a compliance with this direction, we must apply to their construction the usual principles of criticism. Conformably with these principles, it is impossible to say that a denial that a person did a thing under particular circumstances is a denial that he did it at all. I am, therefore, in favor of affirmance.
HARRIS, J., also dissented; COMSTOCK, J., did not hear the argument.
Judgment reversed and new trial ordered. *Page 126