Howd v. Cole — 55 N.Y. St. Rep. 876

Majority

p. 876

Emmett Howd, App’lt, v. Sarah E. Cole et al., Impl’d, Resp’ts.

(Supreme Court, General Term, Third Department,

Filed December 6, 1893.)

Headnote

1. Pleading—Demurrer,—Partial defense.

Where it is entirely clear that the portion of an answer demurred to was intended to be set up as a partial defense, and where the relief demanded is only consistent with such, the answer should be deemed to sufficiently show or state that it is interposed as a partial defense.

2. Same—Payment.

An answer alleging a payment of a certain sum less than the amount claimed in the complaint, characterizes itself as a partial defense, and it is unnecessary for the pleader to call it such.

Appeal from interlocutory judgment overruling demurrer to defendants’ answer.

John W. Roddy, for app’lt; Shaw, Bailey & Murphy (Mr. Bailey, of counsel), for resp’ts.

The complaint states a cause of action upon a bond and mortgage, claiming due thereon a principal sum of $8,000 and interest from Hovember 1, 1884. Defendants denied that the interest was due from Hovember 1, 1884, and alleges payment of the same to Hovember 1, 1891. In the prayer for relief he demands that in the computation of the amount due on the amount due on the bond and mortgage the interest may be computed from Hovember 1, 1891, instead of Hovember 1, 1884, as claimed in the complaint

The plaintiff demurred to the allegations in the answer setting '

p. 877

up payment of interest as aforesaid on the ground that such answer is not therein alleged to be a “partial defense ” as required by § 508, Code of Civil Procedure. It is plain, however, that the payment is alleged by defendant as partial defense, although he does not characterize it by using those words.

We think in such a case as this, where an answer alleges plainly a partial defense it is unnecessary for the pleader to call it such. Such an answer characterizes itself, being necessarily a partial defense, especially with such a prayer for relief as was interposed in the answer in question. A reasonable construction of § 508, Civil Code, does not, we think, require a pleader in every case to use the words “ partial defense ” where the answer sets up a defense that clearly appears on its face to be such.

Section 507 of the Civil Code provides that a defense “ unless it is interposed as an answer to the entire complaint it must distinctly refer to the cause of action which it is intended to answer.” Yet it is held in Crasto v. White, 52 Hun, 475 ; 23 St Rep., 535 ; that where a separate defense containing denials and allegations which can by no possibility refer to any other than a particular cause of action in the complaint the defense refers within the meaning of § 507 supra to that cause of action. So, here, where it is entirely clear that the portion of the answer demurred to was intended to be set upon as a partial defense and where the relief claimed is only consistent with such, the answer should be deemed to sufficiently show or state that it is interposed as a partial defense. We have examined the cases cited by appellant but do not regard them as sustaining his contention.

An answer alleging a payment of a certain sum less than the amount claimed in the complaint characterizes itself as a partial defense, and hence in effect states that it is such.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs ; Herrick, J., not .acting.