Rice v. O'Connor , 10 Abb. Pr. 362 ( 1860 )

By the Court.^*—Balcom, J.

Section153 of the Code contains this language“ The plaintiff may, in all eases, demur to an answer containing new matter, where upon its face it does not constitute a counter-claim or defence; and the plaintiff may demur to one or more of such defences or counter-claims, and reply to the residue of the counter-claims.” The Code does not authorize the plaintiff to demur to a defence consisting of denials merely, and he cannot demur for any cause not specified in the Code. (See Code, § 140.) The plaintiff can demur only when the new matter in the answer, upon its face, “ does not constitute a counter-claim or defence.”

The first defence.consists partly of denials, and partly of new matter. It is very in artificially drawn, and the defendants might have been required to separate the denials from the new matter (Code, § 150, last paragraph; rule 19, adopted in August, 1858), and make some parts of this defence more definite and certain, if the plaintiff had made a motion for that purpose. (Code, § 160.) But, by construing its allegations liberally, as the Code requires (§ 159), I am of the opinion such allegations constitute a defence to the first cause of action set out in the complaint. This defence is that, on the accounting mentioned in such cause of action, a sum less than $61.87, was found due the plaintiff from the defendants, which the defendants paid to the plaintiff before the commencement of this action; and that the sum of $61.87 was not found due from the defendants to the plaintiff. These facts constitute a complete defence to the first cause of action contained in the complaint.

. The new matter in the second defence was intended for a counter-claim; but I am of the opinion it does not constitute such a claim. A counter-claim must exist in favor of the defendant, and against the plaintiff, at the time the action is commenced. Under our former system of pleadings, a plea or notice of set-off always stated, “ that before and at the time of the commencement of this suit, the plaintiff was, and still is, indebted to the defendant,” &c. The second defence in this action does not show that the $7.50 therein mentioned was due or owing from the plaintiff to the defendant before or at the time the action was commenced. It commences with the allegation, “ that said plaintiff is indebted to said defendants,” and concludes with the words, “and that the said sum of $7.50 is now due and owing to said defendants from said plaintiff.” The defendants should have alleged that the $7.50 was due or owing to them from the plaintiff before and at the time of the commencement of the action. Rot having alleged this, the demurrer to the second defence was properly sustained.

As the plaintiff had judgment on both demurrers, it must be reversed, and I think the plaintiff should have leave to withdraw her demurrer to the first defence, and that the defendants should have leave to amend their answer; and that the costs occasioned by the demurrers and this appeal, should abide the event of the action. (Code, § 306, Sub. 2.)

Decision accordingly.

* Present, Mason, Balcom, Campbell, and Parker, 33.