Opinion
April 15, 1921.
Edward B. Twombly, for the appellant.
Hugh Govern, Jr. [ Clifford H. Owen with him on the brief], for the respondent.
Whether the plaintiff had the precise employment regarding the renting of the Robinsion Building which the complaint states, or stood in a mere subordinate relation as this answer maintained, the averment of misconduct in obtaining commissions from the tenants would be equally available. Therefore, it is not essential to the logical completeness of this defense to repeat the prior denials. It is, therefore, redundant, so that in good practice it should be stricken out. In Herrmann v. Cabinet Land Co. ( 217 N.Y. 526) the court said (p. 531): "A denial of any of the allegations of the complaint would not be looked for in the part of the answer containing an affirmative defense." (See, also, Soeurbee, Inc., v. Jatison Construction Co., Inc., 181 App. Div. 662; Bulova v. Barnett, Inc., 193 id. 167 et seq.)
The excision of paragraph XIV, repeating the earlier denials in paragraph IV, was also right. An affirmative defense of full payment is not supported or supplemented by denials. Indeed, denials of the service obscured and weakened a plea of full payment.
Therefore, I advise that the order be affirmed, with ten dollars costs and disbursements.
MILLS, BLACKMAR and KELLY, JJ., concur; JENKS, P.J., dissents in separate memorandum.
I dissent and vote to modify the order in so far as it strikes out paragraph or subdivision V of defendant's answer to the amended complaint. (See Douglass v. Phenix Ins. Co., 138 N.Y. 209; Bulova v. Barnett, Inc., 193 App. Div. 167 et seq.)
Order affirmed, with ten dollars costs and disbursements.