#### Louis Singer, Appellant, *v.*Louis Abrams, Respondent.

(Supreme Court, Appellate Term,

May, 1905.)

Pleading — Answer — Separate defense — When insufficient without denial — Separate defense not aided by denials elsewhere unless referred to — Nonjoinder of joint maker of note, where defendant is sued as indorser, not a defense.

An answer in an action on a promissory note which alleges that the note was made for the accommodation of a third person who, after the maturity of the note, caused the note to be redeemed *361from the bank that had discounted it and assigned, without consideration, to the plaintiff, who had notice of the facts, but which does not deny the allegations of the complaint showing that the bank was a *tona fide*holder, is not available as a defense against the receiver of the bank, nor against his assignee.

A separate and distinct defense cannot be aided by denials in another part of the answer, unless incorporated therein by reference to them.

Nonjoinder of defendant’s partner, who constituted with him the firm that made the note, is no. defense to an action against defendant who indorsed the note if the complaint contains the allegations requisite for the statement of a cause of action against defendant as indorser.

Appeal from an interlocutory judgment entered in the City Court of the city of New York overruling plaintiff’s demurrers to the first and third separate and distinct defenses of the defendant’s amended answer which were as follows:

*“*For a further separate and first distinct defense, the defendant alleges.:

“ 1. That on or about the 18th day of March, 1904, the defendant and one Isidor Weinberg were copartners in business under the firm name of Weinberg & Abrams; and that on or about that day the defendant contributed or loaned to the business the sum of one thousand ($1,000) dollars.

*“*2. That the said Weinberg agreed to and did promise to contribute or loan to the said business a like sum of One thousand dollars; that the said Weinberg not having said funds applied to his father-in-law, one J. Kaplan, to borrow the same from him or to obtain it on his individual credit; that the said Kaplan thereupon requested the defendant to execute a note for the accommodation of the said Weinberg and said Kaplan for the purpose of having said note discounted for the benefit of said Weinberg and for the purpose of contributing the said sum to meet the contribution of the defendant as aforesaid; that the said note is the note alleged in the complaint.

“ 3. That thereafter the said Weinberg with the assistance of the said Kaplan discounted or caused to he discounted the same and deposited or contributed the proceeds thereof to the credit of said Weinberg with the said firm.

*362*“*4. That at the time of the execution and endorsement upon said note by the defendant, the said Weinberg and Kaplan agreed to and promised to hold him harmless thereunder and from liability or claim thereunder.

“ 5. On information and belief, that after maturity of the said note, the said J. Kaplan caused the said note to be redeemed from the bank where it was deposited and without consideration assigned or caused the said note to be assigned to the plaintiff herein who is not a *bona 'fide*holder thereof and who paid no value therefor and who had notice of the fact herein alleged. * * *

“ For a further separate and third distinct defense defendant alleges:

*“*That there is a defect and nonjoinder of parties defendant herein, in that Isidor Weinberg aforesaid was not made a party defendant, he being alive at this time and in the jurisdiction of this Court.”

Aaronstamm & Chorosh (William H. Chorosh, of counsel), for appellant.

Gustavus A. Rogers, for respondent.

Dowling, J.

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, hut without any reference *363to 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. Rep. *577;*91 N. Y. Supp. 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 *364court and the court below, with leave to defendant to amend upon payment of such costs within six days.

Scott and Truax, JL, 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.