Josephine Kager, Respondent, v. Elizabeth Brenneman, Appellant, Impleaded with Others

Josephine Kager, Respondent, v. Elizabeth Brenneman, Appellant, Impleaded with Others. . Pleading — a. demurrer will not lie to separate parts of a defense-** when paragraphs of an answer not separately stated and! numbered will not be treated as separate A demurrer will not lie to separate parts of a defense. For the purpose of deter* * • mining its sufficiency, a defense is to be construed in its entirety. In a doubtful case,’and where a construction can be given to a pleading which will bring it into conformity with the requirements of section 507 of the Code of Civil Procedure, paragraphs of an answer not separately stated and numbered, as required by that section, will not be treated as separate defenses; Appeal by the defendant, Elizabeth Brenneman, from an interlocutory judgment in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the first and second separate defenses set up in the said defendant’s amended answer. The action is brought to obtain an accounting for, and for the sale of, property in which it is alleged that money improperly taken from an estate was invested. The defendant, Elizabeth Brenneman, is the wife of Charles Brenneman, who is the person charged with misconduct in appropriating money of the estate while acting as executor, and investing it in his own name, and she is made party for the reason, on the plaintiff’s theory, that-she is not entitled to a dower interest in the lands so purchased. The complaint is framed so as to state two causes of action. The first is made to rest upon the decree of the surrogate in the accounting proceedings in which Elizabeth Brenneman was a party, which decree of the surrogate, so far as the question here involved is concerned, was affirmed by the Court of Appeals (Matter of Brenneman, 152 N. Y. 645). The second cause of action presents in substance the same facts, but the complaint is framed so as to enable the plaintiff to recover upon presentation of the facts if the decree of the surrogate is not conclusive. The appellant is not only the wife of the executor, but she is also beneficiary under the will. In the 1st paragraph of her amended answer she admits that she is the wife of Charles Brenneman and insists that she has an inchoate right of dower in the property. In the 2d paragraph she admits that her husband used money of the estate in order to purchase the property, but alleges that the plaintiff had no interest in the money so used. The plaintiff demurs to “ the separate defense consisting of new matter contained in ” each of these paragraphs, audit is from the judgment sustaining the demurrer that this appeal is taken. Abner C. Thomas, for the appellant. Henry A. Forster, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: It will be noted that the plaintiff treats the paragraphs of the amended answer separately by demurring to each of them as though they had been interposed as separate and distinct defenses, and they are severally arraigned as “insufficient in law upon the face thereof.” Unless the construction the plaintiff thus places upon the answer is correct, the demurrer is bad in form, for it has been repeatedly held that a demurrer will not lie to separate parts of a defense, but that for the purpose of determining its sufficiency the defense it to be construed in its entirety. The underlying question, therefore, is does this answer set forth, or purport, to set forth, more than a single defense ? Because, if it does not, for the reasons stated, the demurrer to a separate paragraph cannot be sustained." The Oode requires that where the defendant intends to interpóse more" than a single defense, such defenses must be separately stated and numbered. (§ 507.) In th'e answer under consideration the paragraphs are not numbered or stated as separate defenses, and in form it contains bu.t a single defense. Notwithstanding, the respondent urges here, as he did below, that this does not prevent the paragraphs from being treated as separate defenses, and relies, upon certain authorities that a failure to separately state and number them, or the omission of the formal words of the Oode, does not prevent allegations in the pleadings from being treated, as separate defenses. Although somé authorities may be found to support such a proposition,.none of them go so far in overriding the provisions of the Oode as to hold in doubtful cases where different constructions can be given to the pleadings, that that construction shall be applied which is in conflict with the provisions of the Oode requiring that, when more than one defense is alleged, it shall be separately stated and numbered. • Thinking, as we do, that the; pleader intended to set forth but a single defense, the demurrer is not only had in substance, but it. "is also bad in form, in that it "is indefinite in being directed to new matter contained in certain paragraphs, without pointing out what- new matter is particularly referred to. Our conclusion, therefore, is that the judgment appealed from is erroneous and should be reversed,, with costs, but with leave to the plaintiff to plead over on payment of costs in this court and in- the •court below. " Van Brunt, P. J., Barrett, Rumsey and Patterson,, JJ., concurred. [CONCURRENCE — Barrett, J. (concurring) :] Barrett, J. (concurring) : I "agree with the respondent that, although, under section 507 of the Oode of Civil Procedure, each defense. in ■ an answer must he separately stated and numbered, yet it is not necessary that the formal words “as a separate defense” should be used. Their equivalent will answer. It is, indeed, sufficient if the new matter be so stated that these formal words or their equivalent may fairly be implied. In other words, this requirement of section 507 is satisfied when we find in a separately-numbered paragraph an affirmative allegation of exclusively new matter constituting a defense; and this separately-numbered paragraph is complete in itself, and is not combined with denials or references to any other defense. Tested by this rule the demurrer is bad. The 1st paragraph of the answer is a mere admission. Eeither expressly nor impliedly does it purport to be a plea of new matter constituting a defense. The latter observation applies to the 2d paragraph as well. In this 2d paragraph we have both admissions and denials. In connection with the admission there is an affirmative allegation, the tendency of which is to qualify the admission and nullify its .effect. This combination of admission and qualifying allegation is. in no sense a separate defense to the causes of action set forth in the complaint. It is quite clear that the- three paragraphs of the answer were pleaded in their entirety as a single defense. The ¡Daragraphs, it is true, were separately numbered, not,' however, because each is a separate defense, but because each relates to a different phase of the complaint. ; I, therefore, concur in the reversal. Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred. Judgment reversed, with costs, with leave to plaintiff to plead over on payment of costs in this court and in the court below.