Opinion
May, 1905.
Aaronstamm Chorosh (William H. Chorosh, of counsel), for appellant.
Gustavus A. Rogers, for respondent.
This is an appeal from an interlocutory judgment of the City Court overruling plaintiff's demurrers to the first and third separate and distinct defenses of defendant's amended answer. The action is brought upon a promissory note made by defendant and his partner to their order and indorsed by them as partners, and further indorsed by defendant individually. The complaint is in proper form and sets forth all the allegations necessary to constitute a cause of action. Defendant's amended answer, after specific denials of the allegations contained in two paragraphs of the complaint, denies any knowledge or information sufficient to form a belief as to the allegations contained in five paragraphs thereof. The answer thereafter sets up three separate defenses, but without any reference to the denials contained in the earlier paragraphs, and without any repetition thereof. As to the first separate defense set up by defendant's answer there is, therefore, no denial contained therein of any of the allegations of the complaint. An affirmative defense set up in an answer is to be treated as a separate plea and, upon demurrer thereto, defendant is not entitled to the benefit of denials made in another part of the answer, unless incorporated by reference and made a part of the affirmative defense. Douglass v. Phenix Insurance Co., 138 N.Y. 209; Barnard v. Lawyers' Title Insurance Co., 45 Misc. 577; 91 N.Y.S. 41. The first defense attempted to be set up does not deny that the Federal Bank was a bona fide holder of the note in question, and it is not available, therefore, against the receiver of the bank, nor against his assignee, the plaintiff herein. The denials contained in the fifth paragraph of said first defense are not sufficient to constitute either a general or specific denial of the allegation of assignment. Smith v. Coe, 170 N.Y. 162; Fleischmann v. Stern, 90 id. 110; Rodgers v. Clement, 162 id. 428.
The third defense sought to be set up is insufficient in law upon its face. It also contains no denials of any kind, but alleges a defect and nonjoinder of parties defendant in that Isidor Weinberg, defendant's partner, was not made a party defendant. This action, however, is not brought against the makers of the note in question, but against the defendant as an indorser, upon a specific allegation that on the day of the making of the note "and prior to its delivery to any person the defendant herein indorsed the said note in blank for the purpose of giving credit to the said note and of charging himself as an indorser thereon." Of this allegation there is no denial in the answer under said "third" defense. Under section 454, Code of Civil Procedure, plaintiff had the right to sue the indorser, the defendant herein, and was not obliged to sue the makers.
Judgment reversed and the demurrers interposed to the "first" and "third" separate and distinct defenses of defendant's amended answers sustained, with costs in this court and the court below, with leave to defendant to amend upon payment of such costs within six days.
SCOTT and TRUAX, JJ., concur.
Judgment reversed and demurrers interposed to "first" and "third" separate and distinct defenses of defendant's amended answers sustained, with costs, in this court and court below with leave to defendant to amend, upon payment of costs within six days.