#### Jacob Mendelson, Respondent, *v.*Bernard Margulies and Others, as Executors, etc., of Nathan Siff, Deceased, Appellants.

First Department,

July 10, 1913.

Pleading—action for breach, of contract — denial — separate defenses — motion to strike out as irrelevant and redundant — denials included in separate defenses — motion to make answer more definite and certain, when frivolous — sufficiency of affirmative defense.

In an action against executors to recover for the breach of a contract alleged to have been made between the decedent and the plaintiff for the sale and delivery by the decedent to the plaintiff of a silk manufacturing plant, and for the assignment of the lease of the premises, the complaint contained two counts; first, that the plaintiff paid the consideration; that the decedent died before the transfer; that it was provided in the contract that if the decedent should “for any reason whatsoever” be unable to perform the contract, he should return the consideration paid and an equal amount in addition thereto, as liquidated damages, and that defendants having failed to perform have become liable to the plaintiff for the consideration paid and the liquidated damages. The second count realleged by reference the first part of the first count, but instead of alleging liquidated damages, claimed that plaintiff, relying upon the contract, retired from his former business with a view to engaging in the silk manufacturing business at this plant, and being unable to purchase another plant was damaged in the amount claimed in the first count. The defendants after denying the material allegations of the complaint pleaded three separate defenses, *667in form, as complete defenses, each containing a denial by reference to the allegations of the complaint thereinbefore denied. The first defense alleged that an involuntary petition in bankruptcy was filed against the corporation of which the decedent was a principal stockholder, and that the performance of the contract was thereby rendered impossible. The second defense alleged that the proceedings in bankruptcy were instigated by the plaintiff and performance rendered impossible by his acts. The third defense alleged that the defendants duly tendered performance, and plaintiff refused to accept, which relieved them from liability to perform.

Held, that an order striking out the denials included in the separate defenses as irrelevant and redundant should be reversed and the motion denied.

A motion to have an allegation that if the decedent executed the agreement he was authorized so to do by the United Silk Manufacturing Company, or it duly ratified and confirmed the contract, made more definite and certain was frivolous, and an order granting such motion should be reversed.

An affirmative defense is regarded as a separate plea, and in determining its sufficiency all of the allegations of the complaint not denied in the separate defense, even though elsewhere denied by the answer, are deemed admitted.

Appeal by the defendants, Bernard Margulies and others, as executors, etc., of Nathan Sift, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of May, 1913, granting plaintiff’s motion to strike out certain paragraphs of the amended answer as irrelevant and redundant and requiring defendants to make other paragraphs more definite and certain.

*Harry A. Gordon [Moses Esberg*with him on the brief],, for the appellants.

*Samuel Mendelson,*for the respondent.

Laughlin, J.:

This action is brought to recover of the executors of the last will and testament of Nathan Siff, deceased, the sum of $10,000 on account of the breach of a contract alleged to have been made between the decedent and the plaintiff on the 15th day of August, 1912, for the sale and delivery by the decedent to the plaintiff of the plant of the United Silk Manufac*668taring Company at Paterson, N. J., and for an assignment of the lease of the premises upon which the plant was erected.

The complaint contains two counts. In the first count the plaintiff alleges that at or about the time the agreement was made he paid the consideration, which was $5; 000, and that the plant and assignment of the lease were to be delivered to him on the 1st day of October, 1912, but that before that date and on the 9th day of September, 1912, the decedent died; that it was further provided in the contract that if the decedent should “for any reason whatsoever ” he unable to deliver the plant and lease as therein provided he should return to the plaintiff the consideration paid and the sum of $5,000 in addition thereto as liquidated damages; that plaintiff has duly demanded that the defendants perform the contract, but they have neglected and refused so to do, and he charges that thereby they became liable to him in the sum of $10,000.

The second count realleges by reference the payment of the $5,000 by the plaintiff,, that being the agreed purchase price of the property, and realleges the agreement to repay the consideration if for any reason the decedent should he unable to perform; hut instead of alleging liquidated damages it is therein alleged that plaintiff relying upon this contract retired from his former business with a view to engaging in the silk manufacturing business at this plant on the 1st of October, 1912, and that no other like plant was purchasable in the open market at or about that time, and that decedent was well aware of these facts; and claims liability for the same amount in the second count as in the first and demands judgment for $10,000.

By the answer the material allegations of both counts of the complaint with respect to the contract alleged to have been made between the plaintiff and the decedent and the terms and violation thereof are put in issue. Following these denials in the answer the defendants have pleaded three separate defenses, in form as complete defenses; and each contains a denial by reference of the allegations of the complaint thereinbefore denied. These denials in the separate defenses, of the allegations in the complaint, constitute the matter which has been stricken out.

*669The question as to whether the plaintiff was entitled to have these allegations stricken out depends upon whether or not they were unnecessarily interposed, and he is aggrieved owing to the fact that he is prevented thereby from, testing the sufficiency of the new matter by demurrer *(Uggla*v. *Brokaw,*77 App. Div. 310); or whether they were essential to render the separate defenses available. *(Empire Trust Co.*v. *Magee,*117 App. Div. 34; *Outcault*v. *Bonheur,*120 id. 170; *Haffen*v. *Tribune Association,*126 id. 675; *Oishei*v. *N. Y. Taxicab Co.,*136 id. 683.)

The substance of the first defense, so far as material to the question presented for decision, is that the decedent was the principal stockholder and a director and treasurer of said United Silk Manufacturing Company; that on the 10th day of September, 1912, an involuntary petition in bankruptcy was filed against it in the office of the clerk of the District Court of the United States for the Southern District of New York and a receiver of its assets was duly appointed, and he qualified and became vested with the title and took possession of all of the assets of the company within said district on the eleventh day of the same month, and two days thereafter he was duly appointed ancillary receiver by the United States District Court for the District of New Jersey, and he duly qualified the next day and thereupon became vested with and took possession of all the assets of the company within the district of New Jersey including the said plant and lease, and that in consequence thereof performance by the defendants of the contract of their testator was rendered impossible by operation of law.

The allegations of the second defense, material to the present inquiry, are the same as those contained in the first defense, with the exception that instead of alleging that performance by the defendants was prevented by operation of law, they therein allege that the proceedings in bankruptcy against the United Silk Manufacturing Company were instigated by the plaintiff, and that performance by the defendants was, therefore, rendered impossible by his acts and conduct.

In the third defense the preceding allegations of the answer are incorporated by reference, and defendants further allege *670that in advance of the time for performance of the contract they duly notified the plaintiff of the death of their testator and concerning said bankruptcy proceedings, and that they would perform any contract between bim and their testator as soon as the United Silk Manufacturing Company should be reinvested with title to its former assets, and, in effect, requested that the time of performance be extended accordingly, but that plaintiff refused to grant such extension, and notified the defendants that if they failed to perform at the time specified in the contract he would refuse to accept performance at any time thereafter; that if the agreement set forth in the complaint was made between the plaintiff and the decedent the United Silk Manufacturing Company duly authorized him to enter into it or duly ratified or confirmed the contract; that on or about the 19th of December, 1912, an order was duly made in said bankruptcy proceedings by one of the judges of the District Court of the United States for the Southern District of New York dismissing the proceeding and authorizing the receiver to reinvest the United Silk Manufacturing Company with the title to all of its assets and effects, and that on the fifteenth day of January thereafter the appointment of the ancillary receiver was duly vacated and he was likewise directed to reinvest the company with title to all of its assets and effects which passed to bim as ancillary receiver; that thereupon the defendants were ready, willing and able to perform the contract alleged in the complaint and offered so to do, but the plaintiff refused to permit the defendants or the United Silk Manufacturing Company to perform the same, and that thereafter the company sold and transferred the machinery and effects and lease “ to one Isaac Mendelson, a broker of the plaintiff herein, for a sum less than the price to be paid therefor under the terms of the alleged contract referred to in the complaint; ” that such purchase was instigated by the plaintiff and was for his benefit, and that of said Mendelson, with whom he was associated in business.

An affirmative defense is regarded as a separate plea, and in determining its sufficiency all of the allegations of the complaint not denied in the separate defense, even though elsewhere denied by the answer, are deemed admitted. *(.Douglass*v. *671
      *Phenix Insurance Co.,*138 N. Y. 209; *Eells*v. *Dumary,*84 App. Div. 105; *Empire Trust Co.*v. *Magee, supra; Fleischmann*v. *Stern,*90 N. Y. 110.) These defenses do not fall within the category of defenses by way of confession and avoidance. A denial of the execution of the contract was not essential to these defenses, and it may fairly be said that they are predicated upon the existence of the contract; but the plaintiff’s cause of action is for a *breach*of the contract and each of these defenses is pleaded upon the theory that there has been no breach of the contract on the part of the decedent or of the defendants. Each defense is interposed upon the theory that the plaintiff did not duly tender performance and that the defendants did not fail or refuse to perform, for the reason that, as pleaded in the first defense, performance was prevented by operation of law, and in the second because the plaintiff himself prevented performance, and in the third for the reason that defendants duly tendered performance and plaintiff refused to accept performance and was guilty of acts which relieved defendants from liability to perform. These facts are inconsistent with the allegations of the complaint, and, therefore, could not be proved if the allegations stand admitted, as they do so far as these separate defensps are concerned if not therein denied. *(Fleischmann*v. *Stern, supra*; *Empire Trust Co.*v. *Magee, supra.)*

The allegations which the defendants have been required to make more definite and certain are to the effect that if the decedent executed the agreement he was authorized so to do by the United Silk Manufacturing Company or it duly ratified and confirmed the contract. The application to have those allegations made more definite and certain was clearly frivolous and entitled to but scant consideration. It is quite immaterial to the plaintiff whether the decedent was authorized to make the contract when he signed it or whether the company subsequently ratified his act. The only materiality of these allegations is to show that defendants could have performed but for the bankruptcy proceedings and perhaps to show that the plaintiff knew that the decedent had not acquired title at the time the contract was made and might be unable to obtain title, which, however, is not *672alleged. The complaint does not show whether or not the contract was in writing; but it is alleged in the complaint that the decedent made the contract, and it is not alleged in these separate defenses that in making it he was acting as agent for the United Silk Manufacturing Company, and, therefore, there is no necessity that the allegations be made more definite and certain, on the theory of requiring him to state whether he made the contract as principal or as agent.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.