Nicoll v. Fash , 59 Barb. 275 ( 1871 )

By the Court, Cardozo, J.

It was not disputed on the argument, and cannot be, but that the answer does not aver several matters which it will be necessary for the defendant to prove, to establish the validity of the lease. If the truth of the plea, therefore, were conceded, the defendant would not be entitled to judgment, because other facts must be proven, to establish her case; and not having pleaded those facts, she cannot claim to give evidence to support them. It is plain, from this statement, that that part of the answer demurred to is bad.

The defendant’s counsel now insists that that part of the answer is irrelevant, or rather that it is introductory to the sixteenth clause, and that a demurrer will not lie to a part of a defense. But the difficulty is that it is not pleaded as part of one defense. The defendant has stated them separately and numbered them, thus clearly showing, by his compliance with the 25th rule of the court, that he meant to plead them as separate and distinct defenses. He cannot now be heard to assert that they are not so.

[First Department, General Term, at New York, April 4, 1871.

The statute of 1855, (Laws of 1855, ch. 427,) does not aid the defendant. It relates only to conveyances made by the comptroller of the State.

The judgment below should be reversed, and judgment rendered for the plaintiff on the demurrer, with leave to the defendant to amend her answer.

Judgment reversed.

Ingraham, P. J. and Cardozo and Geo. G. Barnard Justices.]