#### The Krauss Engineering Company, Appellant, *v.*Ronald J. McKinnon, Respondent.

(Supreme Court, Appellate *Term,*

February, 1910.)

Appeal — Review — Scope of review — Matters «viewable on appeal from interlocutory judgment or order — On appeal from order directing separate statement and numbering of defenses — Review of propriety of imposition of costs only.

Pleading: Matters relating to pleadings generally — General rules —

Surplusage: Answer or plea; Defenses in general — Answer as constituting one or more defenses; Denials and traverses — What is a denial — Allegations in connection with denial.

A denial of allegations contained in a complaint may be included in an affirmative defense where such denial is necessary or relevant to the defense.

The pleading of facts inconsistent with allegations of a complaint by "way of answer is not equivalent to the denial of such allegations.

A paragraph in the complaint which would have been stricken out if defendant had moved for that purpose should be disregarded.

When an affirmative defense contains two paragraphs, the latter of which is merely the pleader’s conclusion from the former, there are not two defenses that can be separately stated and numbered; and a motion for such relief should be denied.

On appeal from an order denying plaintiff’s motion to direct defendant to separately state and number the defenses set up in his answer, the court will not review merely the propriety of the imposition of costs in the court below.

Appeal from an order of the 'City Court of the city of Raw York denying plaintiff’s motion to direct the defendant to separately state and number the defenses set up in his answer.

Kahn & Hegt (Jonas J. Hegt, of counsel), for appellant.

Quigg & Coleman (Charles W. Coleman, of counsel), for respondent.

Whitney, J.

The action is for conversion of money received by the defendant, which the plaintiff claims was re*182ceived by him in his capacity as vice-president of the plaintiff company. The plaintiff company alleges in its complaint that it entered into an agreement in writing with a third party, known as the Barnard Realty Company, to furnish certain labor and materials in connection with a steam heating plant, for which the said realty company agreed to pay the sum of $825. They allege that all the conditions of this agreement were duly performed on their part; that the said realty company paid to the defendant, on account of such contract, the sum of $625, and that the defendant has converted this sum to his own use. The answer, after denying all of the important allegations of the complaint, sets up as a single affirmative defense three paragraphs.

The first paragraph pleads facts inconsistent with one of the allegations of the complaint, and proof of which would be admissible under a denial thereof. A denial of an allegation may be included in an affirmative defense, the purely technical decisions and *dicta*to the contrary having been overruled. Douglass v. Phenix Ins. Co., 138 N. Y. 209, 215, 216; People ex rel. McEnroe v. Wells, 89 App. Div. 89, 92; Haffen v. Tribune Association, 126 id. 675, 677; Devoe v. Lutz, 133 id. 356, 361. If this were not so, a party would sometimes be deprived of a valid defense because his adversary had inserted a misrepresentation in the complaint. In the present case, however, the denial is not necessary or relevant to the defense; nor is the pleading of inconsistent facts equivalent to a denial. Rodgers v. Clement, 162 N. Y. 422, 428. It would have been proper to strike out the paragraph, had defendant moved for that relief. Haffen v. Tribune Association, *supra.*It is to be disregarded.

The second paragraph sets forth that defendant has spent ' $626 in labor and materials necessary to the performance of the contract, and received but $625 on account thereof; and the third paragraph, that, " *by reason thereof,*even if the plaintiff had been entitled to receive the * * * $625 * * * said plaintiff has already been paid the same in full.” - The words “ by reason thereof ” show that the third paragraph is but the pleader’s conclusion from the second, and that but one defense was intended or stated. The pleader’s conclusion *183is incorrect, and the facts stated in the second paragraph make out a defense of recoupment, not payment. Plaintiff is not yet paid when its vice-president gets money to which its treasury is entitled. But, when it claims the benefit of a contract which its vice-president has in part executed at his own expense, it must pay him his reasonable advances thereon.

Hence the relief sought was properly denied, and the court could not grant the plaintiff any alternative relief, since it asked for none. But, as the answer was so improperly drawn, we do not think that costs should have been imposed in denying plaintiff’s motion. Costs upon such motions should only be allowed in favor of parties who have pleaded according to the rules of code pleading, or upon the denial of motions which are merely harassing and plainly not intended to subserve any useful purpose. We cannot disturb the order appealed from in this respect, as it is a wise rule of the appellate courts not to review the imposition of costs upon a mere motion (Joyce v. Mayor, 12 Abb. Pr. 309) ; but, while we affirm the order appealed from, we award no costs upon the appeal.

Guy, J., concurs; Seabury, J., concurs in result.

Order affirmed, without costs.