Camp v. Bedell — 5 N.Y.S. 63

Majority

p. 63

Camp v. Bedell.

(Supreme Court, General Term, First Department.

March 29, 1889.)

Headnote

1. Pleading—Election—Demurrer and Answer.

A pleading, designated as an answer, which sets up several defenses to each cause of action alleged in the complaint, and recites that “ defendant^ further answering, says that there are not sufficient facts stated therein to constitute a cause of action, ” does not contain a demurrer, and a motion to compel defendant to elect between a demurrer and answer will he denied.

2. Same—Motion to Strike Out—Harmless Error.

The objection that a complaint does not state facts sufficient to constitute a cause of action may be made at the trial, though not set up in any pleading. When set up in an answer it is surplusage, and maybe stricken out, hut a refusal to do so cannot prejudice plaintiff.

Appeal from special term,-Sew York county.

Action by Hugh H". Camp against Arthur G-. Bedell for libel. Plaintiff appeals from an order denying a motion to compel defendant to elect between a demurrer and answer alleged to be contained in the same pleading.

Argued before Van Brxjnt, P. J., and Brady and Daniels, JJ.

Daniel H. Chamberlain, for appellant. William W. Niles, for respondent.

This action was brought for the purpose of recovering damages for libel, the complaint being in the usual form, and containing two causes of action. The defendant served on the plaintiff's attorney a pleading, called by him an “answer,” in which he set up various defenses to said two causes of act’on. This pleading contained as to each cause of action the following allegation: “The defendant, further answering, says that there are not sufficient facts stated therein to constitute a cause of action.” The plaintiff thereupon moved for an order to compel the defendant to elect whether he will abide by the demurrers to the several causes of action, or by the answers contained in said papers, and to strike from the record the pleading not so elected, which motion was denied, and from the order thereupon entered this appeal is taken.

It is undoubtedly true that the defendant cannot demur and answer to the same cause of action, and that demurrers and answers are separate and distinct pleadings, having different objects, raising different issues, and requiring different modes of trial, and that they are not less separate and distinct if in form connected and on one paper. But we fail to find in the defendant’s pleading that any demurrer has been inserted therein. He designates it as an answer. The matter stated in the answer raised an objection which the defendant was not required to raise by demurrer, and which he did not waive by answering. This is an objection that he has a right to take even at the trial, although he might not have demurred, and although he may have answered without stating anything in said answer in respect thereto. The defendant not having treated the pleading as a demurrer, and not having attempted thereby to save an objection which could only be raised by demurrer, we see no reason for designating the pleading by that name. It is undoubtedly true that the allegation is out of place in an answer, although it is not waived if not taken by any pleading. The result is that the allegation is mere surplusage, and might very well be stricken out as such upon a motion made for that purpose. The allegation, however, cannot by any possibility do the plaintiff any harm. The plaintiff’s position is in no way changed because of the fact that the answer contains this needless allegation. We think, there

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fore, that upon the record no demurrer has been interposed, and, as a consequence, the plaintiff had no right to claim an election by the defendant between a supposed demurrer and his answer. The order should be affirmed, with $10 costs and disbursements. All concur.