The opinion
Gaynor J.:
This is one of those answers which so often bother trial judges. The so-called “ defence ” is no defence. - A defence can only consist of new matter, viz., "fact's outside of the issue raised by a general or special denial (Code Civ. Pro. sec. 500). First come denials in an answer, and then defences if there be any. The distinction between them is shown in the rule that while a “ defence ” may be stricken out as sham, a denial may not be (Wayland v. Tysen, 45 N. Y. 281 ). Mothing may be pleaded as a defence which may be proved under a denial (Flack v. O’Brien, 19 Misc. Rep. 399 ; McManus v. Ins. Co., 22 Misc. Rep. 269 ; Green v. Brown, 22 Misc. Rep. 279 ). The burden of proof is on the defendant upon an issue made by a defence, and facts should not be pleaded as a defence if the. burden of proving the issue to which they belong is not on the defendant. This is the test to go by. The general denial in this answer raises the whole issue. It puts the plaintiff to the proof of the alleged contract, and enables the defendant to prove any fact which disproves the making of it. If, therefore, Jacob von Hagen, named in the alleged defence, were to be considered as Philipp von Hagen, the plaintiff, the facts stated are not a defence, but are embraced within the general issue.
Motion granted.