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SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 15. tract had expired; but the city waived this provision of that contract by modifying and adding to the size of the plant, and extending the time of the completion of the plant as enlarged, and postponing the time of the test of the work done under the first contract. It makes no difference that the city subsequently gave notice that it claimed a breach of the first contract; this notice was given pursuant to the terms of both contracts, and, having once waived the alleged breach as to time of completion, it cannot plead breach under both contracts as a breach of the first, all the more that we have decided that the sureties were discharged by the changes worked by the second contract in the terms of the first. For the dead body of the sureties' liability there can be no resurrection and no life beyond its grave. :

The learned counsel for the city of Albany insists that the action cannot be maintained either under sections 1638 and 1639 of the Code of Civil Procedure or as an action in equity.

Article 5 of title 1 of chapter 14, of which these sections are a part, is entitled, “ Action to compel the determination of a claim to real property." Section 1638 permits an action by the owner of a fee in lands against any person to compel the determination of any claiın adverse to that of the plaintiff, “including any lien or incumbrance upon said property of the amount or value of not less than two hundred and fifty dollars." Section 1639 states the requisites of the complaint and, among them, an allegation that the defendant unjustly claims “a lien or incumbrance thereupon."

Section 1641 provides that “the defendant may, in his answer, * * * set forth facts * * * showing that he has an interest * * * in or lien or incumbrance upon said property, and thereupon le may demand * * * any judgment to which he would be entitled in an action brought by him to * * * enforce in any manner the interest * * * therein or the lien or incumbrance thereupon which he asserts.”

The city availed itself of this latter action, and for affirmative answer alleged a partnership between the Andrews and the plaintiff in the contract with the city, and an agreement between them whereby the plaintiff was to receive one-fourth of the profits, in pursuance of which the plaintiff procured the execution by the Moores of the bond to the city; that this interest in the contract App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. was concealed from the city, and that the plaintiff was liable to the city as principal in the Andrews contract and not as surety; that he was indebted to the city for a breach of the contract in the sum of $109,250 and interest, and demanded judgment for that sum against the plaintiff and the two defendants Andrews, and that it might be subrogated to the rights and interests of the two defendants Moore in the bond and mortgage in question.

The defendants Moore, in their answer, alleged that the bond and mortgage by the plaintiff were intended as indemnity against all costs, expenses and liability by reason of their executing the bond to the city, denied knowledge of the transactions set forth in the complaint as discharging their liability on that bond, claimed that they had been subjected to costs, etc., in the sum of $2,000, and demanded affirmative judgment declaring void the bond to the city and ordering the payment by the plaintiff of their said damage, and that upon such payment the plaintiff's bond and mortgage be canceled and discharged of record. The defendants Andrews answered admitting the allegations of the complaint.

There is no finding of the court in respect of any partnership of the plaintiff in the Andrews contract with the city, and that part of the answer may, therefore, be dismissed from our consideration.

The argument of the learned counsel inadvertently loses sight of the force of the amendment of 1891 to section 1638 and the following sections, by which a clear right is given to bring an action and demand a judgment to remove a lien or incumbrance on real estate. These sections seem to override the previous authorities cited by him, or any others discovered by us, and to give a remedy exactly suited to this controversy. He argues that there is “no claim of title adverse to that of the plaintiff, nor any lien or incumbrance created by any person who claims a title adverse to the plaintiff.” The words of section 1638, “ adverse to that of the plaintiff,” have no relation to the words “lien or incumbrance” in the subsequent part of the section; all the more that these words are not used in section 1639 in specifying that the plaintiff may demand judgment that the defendant, and every person claiming under him (and we cannot see why this does not cover the city's prayer to be subrogated to the rights of the mortgagees), be barred from a claim to

App. Div.– Vol. XV. 4

SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 15. any lien or incumbrance on the property; and this reasoning is fortified by the other sections referred to, especially as section 1642 says: “If the defendant claims an interest * * * in or a lien or incumbrance upon said property the subsequent proceedings are the same as if it was an action brought by the defendant to establish or enforce the said * * * lien or incumbrance, and the court may award any appropriate relief,” etc. Even outside of the statute we think that the court has equitable jurisdiction to cancel a mortgage given under the circumstances alleged in the complaint, and that the novation of the contract has worked a discharge of the liability of the plaintiff as a surety.

We have not found it necessary to examine the plaintiff's exceptions to the admission or rejection of evidence as our conclusion disposes of the matter.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.

MARGARET PITTENGER, Appellant, v. SOUTHERN Tier MASONIC

RELIEF Association, Respondent. Motion to make an answer definite a denial of all allegations, not already

admitted or denied, is good an answer, not denying that a policy annered to the complaint was executed, which sets up a different policy, construed.

A denial, in an answer, of each and every allegation in the complaint contained

" not herein before or hereinafter admitted, denied or controverted," which has already specifically admitted and denied certain allegations of the complaint,

is sufficient. The complaint in an action upon a policy of insurance had annexed to it an

alleged copy of the policy; the answer neither admitted nor denied specifically the allegation of the making of that policy, but set up as a further defense that a policy, of which a copy was annexed to the answer, was obtained by the false representations of the applicant for insurance. The policy annexed to the answer differed from the one annexed to the complaint, although both

related to the same subject-matter. Held, that the answer should be construed as it would if the pleader, in specifi

cally referring to and answering the allegation of the complaint relative to the App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897.

making of the policy, had alleged that the defendant made another contract different from that set out in the complaint, the effect of which practically

would be a denial that it had made the contract set forth in the complaint; That a motion to compel the defendant to make its answer more definite and cer

tain should be denied.

APPEAL by the plaintiff, Margaret Pittenger, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of December, 1896, denying her motion to compel the defendant to make its answer more definite and certain.

Samuel I. Frankenstein, for the appellant.

Charles A. Collin, for the respondent.

GOODRICH, P. J.:

The action was brought upon a certificate or policy of insurance issued by the defendant, a copy of which is annexed to the complaint.

The answer specifically admits and denies certain allegations of the complaint and then adds, "and the defendant denies each and every allegation in said complaint contained not herein before or hereinafter admitted, denied or controverted.”

There was for some years great difference of judicial opinion whether it was good practice for an answer to admit or deny all other allegations of a complaint not thereinbefore admitted or denied, but this question has been set at rest by the case of Griffin v. L. I.

R. R. Co. (101 N. Y. 348), which holds that such a denial is sufficient; and this was the view of the effect of the decisions of our courts taken by Judge BLATCH FORD in his decision in Burley v. German Am. Bank (5 Civ. Proc. Rep. 172).

Of the second paragraph of the complaint which contained the allegation of the making of the policy there was not, specifically, either affirmative admission or denial. The answer set up a further defense that a poliey of which a copy was annexed was obtained by false representations of the applicant. This copy differs in matters more or less material from the one annexed to the complaint. The question arises whether this constitutes either an admission or denial of the allegation as to the making of the policy set out in the comSECOND DEPARTMENT, MARCH TERM, 1897. (Vol. 15. plaint. In other words, whether the plaintiff can be compelled to resort to this part of the answer to ascertain whether or not the answer contains a denial of the making of a policy in the very language of the one annexed to the complaint.

We are of opinion that the answer stands precisely as it would if the pleader, in specifically referring to and answering the second paragraph, had alleged that the defendant made another contract differing from the one set out in the complaint, the effect of which practically would be a denial that he made the contract set forth by the plaintiff.

Both the contracts relate to the same subject-matter, and the plaintiff alleges that the policy which she sets out was the contract between the parties. The defendant, on the other hand, alleges that the policy which it sets out is the contract, thereby tendering a distinct issue. We are not expressing any opinion as to whether the contracts import different liability, but if they do, the issue is whether the one or the other was the actual contract; and we do not see how the plaintiff can have any difficulty or be exposed to any danger in knowing precisely what the defendant claims.

It will be observed that the answer sets up a defense and not a counterclaim. The allegations of a counterclaiun must contain all that is essential to constitute a complete cause of action, and it is for the reason that it must be in such form that a reply can be interposed to each of the allegations of the counterclaim. This dissociates its allegations from any other defenses of the answer, but it does not follow, because a defense distinctly and separately states new facts, that in that case its allegations are to be dissociated from the other parts of the answer.

The order should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

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