Wagner v. Rosenthal

This is a motion why an order should not be' granted directing the defendant to separately number and state the counterclaims and to separately number and state the defenses contained in his answer to the amended complaint herein. It appears-from the answer that the defendant by the first paragraph thereof sets up a denial to the plaintiff’s second and third allegations of the complaint. By the second paragraph thereof defendant sets up a counterclaim. By the third paragraph thereof he sets up a defense to the plaintiff’s cause of action. By the fifth paragraph thereof he sets up a further defense to the cause of action alleged in the complaint.

In the manner in which the denials, defenses, and counterclaims are alleged, it seems as though they were jumbled, and not separated and numbered as required by the Code of Civil Procedure. First, the de*1110féndant should set up his denials to the cause of action; second, any defenses that he may have to the same, separated and numbered; third, any counterclaims that he may have, to be separated and numbered. This would be the proper practice. The plaintiff is asking no favor, but a matter of right. By express provision of section 507 of the Code of Civil Procedure defenses of new matter must be separately stated and numbered, the same as a cause of action "must be separate and numbered.” Section 483, Code Civ. Proc. These are mandatory provisions. They are enjoined by the mandatory word “must,” and we have no right to disregard them. To. do so would cause and encourage confusion and disorder. A defense may not be jumbled with another or other defenses, nor with denial or denials. Pirst comes denials in an answer, and then new matter constituting a defense, and, third, a counterclaim or counterclaims in ordinary and concise language, without repetition (section 500, Code Civ. Proc.) as above pointed out. This the defendant has failed to do.

The motion must therefore be granted; but as it appears from the answer that the defendant has a good defense and counterclaim to the plaintiff’s cause of action, although inartificially pleaded, the motion will be granted, without costs, and with leave to the defendant to serve an amended answer as herein indicated within five days of the service of the order to be entered hereon.

Settle order on one day’s notice.