Hyperlawhypertext legal database Levitt v. O'Rourke Engineering Const. Co. 144 N.Y.S. 474

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Levitt v. O'Rourke Engineering Const. Co.

144 N.Y.S. 474 Court N.Y. App. Div. Decision date 1913-12-05 English

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p. 474
LEVITT et al. v. O’ROURKE ENGINEERING CONST. CO.
(Supreme Court, Appellate Division, Eirst Department.
December 5, 1913.)

Headnote

Pleading (§ 80[1] )—Separate Defense—Partial Defense.
Wliere the complaint stated a single cause of action, but the different items of damage were pleaded in separate paragraphs, an alleged separate and distinct defense to the cause of action set forth in one paragraph, that after the alleged wrongful occupation plaintiffs accepted from the owner of the land $200 in full payment of any and all claims for or on account of the alleged wrongful occupation, was at most a partial defense, and, not having been pleaded as such, was demurrable.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 162, 181-183; Dec. Dig. § 80.*]
Appeal from Special Term, New York County.
Action by Charles H. Levitt and another against the O’Rourke Engineering Construction Company. From an interlocutory judgment overruling a demurrer to a separate defense, plaintiffs appeal. Reversed, and demurrer sustained, with leave to file an amended answer.
Argued before INGRAHAM, P. J„ and McLAUGHLIN, LAUGH-LIN, DOWLING, and HOTCHKISS, JJ.
Charles Goldzier, of New York City, for appellants.
Augustus L- Richards, of New York City, for respondent.

The complaint states a single cause of action. The different items of damage are set forth in separate paragraphs. The defendant pleaded, as a separate and distinct defense to the cause of action set forth in the fourth paragraph of the complaint, that after its alleged occupation the plaintiffs accepted from the owner of the land $200 in full payment of “any and all claims for or on account of

p. 475
the alleged wrongful occupation.” This is not a complete defense, and does not .purport to be a defense of any item of damage other than that set forth in the fourth paragraph of the complaint. It is at most a partial defense, and to be good should have been pleaded as such. The plaintiffs’ demurrer, upon the ground that it was insufficient in law upon its face, should therefore have been sustained. A complete defense, when pleaded as such, must go to the entire cause of action set out in the complaint. If it does not, then it is demurrable.

The interlocutory judgment appealed ■ from is therefore reversed, with costs, and the demurrer sustained, with costs, with leave to defendant to serve an amended answer, on payment of costs in this court and the court below.