#### Mahlon and John B. Mattison, plaintiffs and appellants, *vs.*Edmund A. Smith (who was impleaded with William P. Demarest *et al.)*defendant and respondent.

1. An answer which, in terms, generally denies only those allegations in the pomplaint, which the defendant designates as “ material,” is evasive, and obnoxious to a motion that it be made more definite and certain.

2. A denial in an answer, should, by its words, so describe the allegations of the complaint which the pleader intends to controvert, that any person of intelligence can identify them.

(Before Bosworth, Ch. J. and White and Monell, JJ.)

Heard November 14, 1863;

decided November 28, 1863.

This was an appeal by the plaintiffs from an order denying their motion that the defendant be required to amend his answer.

The action was brought by the plaintiffs, in behalf of themselves and all other judgment creditors of William P. Demarest and George A. Middleton, who should come in and contribute to the 'expenses of the action, for the purpose of setting aside an assignment made by the debtors to one Powers, who was joined with them as a defendant in this action, and also to reach assets alleged to be in the hands of the defendant Smith, and to set aside as fraudulent a judgment he held against them. The complaint was verified.

The defendant Smith interposed an answer, which was also verified, which simply stated that he denied *“*each and every material allegation in said complaint contained.”

*707The plaintiffs’ motion for an order requiring the defendant to make his answer more definite, was heard at special term, in July, 1863, before Mr. Justice Moncrief, and was denied with costs. From that decision the plaintiffs now appealed.

*John Graham,*for the plaintiffs, appellants,

cited 2 *Duer,*684; 20 *Barb.*378, 386 ; *McKyring*v. *Bull,*16 *N. Y. Rep.*297, 303.

*W. H. & S. P. Bell,*for the defendant, respondent,

I. The answer is' a good general denial, within section 149 of the Code of Procedure.

1. Nothing can be a more perfect answer than a simple denial of all the allegations constituting the plaintiffs’ cause of action. *(Radde*v. *Ruckgaber,*3 *Duer,*684.)

2. Every allegation is immaterial, which, if disproved, will prevent a plaintiff from recovering, or which, when denied, he is not bound to prove to entitle himself to a verdict. *(Oechs*v. *Cook,*3 *Duer,*165.)

3. There are three parties to the defense. 1. The judgment debtors, Demarest and Middleton. 2. Their assignee, Powers. 3. A creditor preferred by their assignment, Smith. All three are independent of each other, and have separate interests ; all three are charged with a conspiracy to defraud. The plaintiffs claim to have recovered a judgment against the judgment debtors since their assignment. The pleader is presumed to know what.is the ground of his action against each of the defendants. Here he charges each with separate acts; and is presumed to know what charge affects each.

4. The. words “material” and “controverted” were not inserted in section 149 of the Code, without a meaning and a purpose. The plaintiff, when he makes a charge, first considers its materiality. The defendant, then, if he thinks it materially affects him, denies it; and with that which affects an independent có-defendant he has nothing to do, The intention of the Code was to simplify and shorten pleadings.

5. It is at the defendant’s risk and option, whether he denies *708specifically or generally ; and the court can not compel him to adopt one rather than the other. And the distinction must be kept in mind. This answer is not a denial of mere knowledge or information sufficient to form a belief, but of the facts.

6. Many of the allegations of the complaint are made on information and belief, and are not material for the defendant Smith to answer. Grood pleading requires that the allegations should be made positively, in order to prevent immaterial issues and confusion. *(Truscott*v. *Dole,*7 *How. Pr.*221.) The plaintiff could not have obtained an injunction on this complaint. (3 *Abb. Pr.*182, 328. 12 *How. Pr.*464.)

7. The sufficiency of the answer is further sustained by *Kellogg*v. *Church,*(4 *How. Pr.*339,) and *Parshall*v. *Tillou,*(13 *id.*7.)

II. The order is not appealable, for it does not affect the merits.

By the Court, Bosworth, Ch. J.

The plaintiffs appeal from an order denying a motion that the defendant *Smith*be required to amend his answer by alleging which of the allegations in the complaint he.denies, and to make it definite and certain, so that the precise nature of his defense (if any he has) be made apparent.

The answer, exclusive of the title of the action, is in these words, viz: *“*Edmund A. Smith, one of the defendants in *above*action, answering the complaint in said action for himself, denies each and every *material*allegation in said complaint contained.” The-complaint and answer are verified.

The Code enacts that “ the answer of the defendant must contain, 1. A general or specific denial of each material allegation of the complaint *controverted*by the defendant,” &c.

This imports that the answer, by its terms, must show which of the allegations of the complaint the defendant controverts ; and those allegations he may deny in a short form of denial, or he may deny them specifically.

Ths Code. designed that the pleadings under it should he such as would leave it free from doubt what issues of fact *709were raised by them, and that to ascertain this it would not be necessary to consider abstract principles of law and determine the legal effect of any particular, allegation of fact, in respect to which the judges of subordinate courts might not agree, and the judges of the court of last resort might possibly differ.

If the answer, on a just donstruction, means that the defendant denies each and every allegation of the complaint which 7ie deems material^ then it is quite clear that- there is no- mode of ascertaining which of the allegations he controverts, or which ones he has denied either in fact or intent.

If it means that he denies each and every allegation which, *in intendment of*lato, is material, then it is evident that as the court must decide which are material, the answer is, in legal effect, a denial of each and every allegation which the court *shall decide to be materictl.*

An answer in form thus : “The defendant denies each and every material allegation in the complaint which the court shall hold to be material,” would not inform a plaintiff which of the allegations the defendant controverted or intended to deny.

The Code, by requiring a defendant to verify his answer where the complaint is verified, intended to require him to admit all the allegations which, if true, were true of his own knowledge, or incur the risk of suffering the pains and penalties of perjury.

The fact that some men, when not required to answer on oath, will deny some allegations of the complaint which they would not dare to deny on oath, furnishes no argument in favor of the sufficiency or definiteness of the present answer. The Code expects good faith and common honesty in putting in all answers, whether verified or not; but as that is not always practiced, it has provided that, on motion, *sham*answers may be stricken out (§ 152,) and evasive and indefinite ones may be required, to be made definite and certain. (§ 160.)

It has been held that an answer which denies “ each and every allegation of the complaint” is sufficient. *(Kellogg*v. Church, 4 *How.*339.) So also an answer which .denies all the allegations which are contained between specified folios. *(Gas-*
      *710
      *sett v. Crocker,*9 *Abb. Pr.*39.) In these cases, by merely looking at the words of the complaint and answer, it is apparent what allegations are denied. The answer by the words it contains describes and identifies the allegations which are denied, so that any person of. intelligence, whether lawyer or layman, can determine with accuracy what allegations are put at issue.

In the present case it is impossible to ascertain from the answers, what is the ground of the defense. No new matter is set up, and it can not be known from the answer on which of the allegations of fact found in the complaint and their supposed falsity, the defense is to rest.

Such a form of answering should not be encouraged. It is, to say the least, evasive, and if sanctioned, would tend to authorize the general issue in all cases, although a defendant would not hazard a specific or even a general denial in terms, on oath, of every allegation which is clearly material.

This is an equity suit, by judgment and execution creditors, and such an answer is in conflict with the spirit as well as letter, of all the rules and practice applicable to' answers in such suits. The mode of answering prescribed by the Code, assimilates more nearly to the chancery than to the common law practice.

It, however, permits a general denial of every allegation which a defendant wishes to controvert, and can conscientiously deny. But the word *“*controvert,” which has been retained in this section in all the changes made in its form, must have some meaning given to it, if it can appropriately have any meaning.

The word *“ controverted,”*in connection with the word “ denial,” whether the denial' be general or specific, requires that the answer should, by its words, so describe the allegations of the complaint controverted, that any person of intelligence, though not a lawyer, can identify them.

An answer which so denies the allegations of a complaint, that it must b,e left to the uncertainty of a future judicial decision, however learned or unlearned the judge may be who *711makes it, to ascertain which are denied and which are not denied, is one which no plaintiff should be told he must be content to receive.

The Code has not introduced such laxity in pleading. Ho system ever in force in this state permitted it; there has been no decision cited which sanctions it.

I think the order should be reversed, and the defendant required to amend his answer so as to make it definite and certain, and render the ground of defense apparent, by a clear identification of the allegations of fact which the defendant controverts.

Ho costs of the appeal should be given to either party, and the plaintiff should have $10 costs of the motion at special term, to abide the event.