WHITE v. DRAKE

WHITE v. DRAKE. N. Y. Supreme Court, First Department; Special Term, December, 1877. Answer. —Demurrer. —Pleading. A defense merely alleging that plaintiff is not the real party in interest, is demurrable; because it attempts to set up new matter which could not be proved unless specially pleaded, and states no fact, but only a conclusion of law. Demurrer to an answer. William E. White sued Albert A. Drake for $83.25, ■being the amount of several choses in action assigned' to said Drake, by one Robert Woodruff. The defendant in his fourth answer alleged as follows : “Defendant, for a further and separate defense, alleges on his information and belief that the plaintiff is not the real party in interest, but that said Wood-ruff is the real party in interest.” To this part of the answer the plaintiff demurred on the ground that it was insufficient in law upon its face, and constituted no answer or defense to the complaint or any part thereof. Howard Payson Wilds, for demurrer. I. A mere allegation in an answer that a party to an action is not the real party in interest, is bad upon demurrer (Bentley v. Jones, 4 How. Pr. 204, 205; Russell v. Clapp, 3 Code R. 65; Thomas v. Desmond, 12 How. Pr. 321; Brown v. Ryckman, Id. 314 ; Seeley v. Engell, 17 Barb. 537; Jackson v. Whedon, 1 E. D. Smith, 142 ; Savage v. Corn Exchange, &c. Co., 4 Bosw. 15 ; Code of Civ. Pro. § 499 ; Code of Pro. §§ 147, 148; Burnside v. Matthews, 54 N. Y. 78, 82; Wright v. Wright, Id. 437, 441). II. “The defense that the plaintiff is not the real party in interest is new matter. A general avernment to that effect, however, is not enough ; the facts must be stated which constitute the defense, and which show that he is not the party in interest. ’ ’ And plaintiff may demur (Pomeroy's Remedies and Remedial Rights, p. 733, § 711, and cases cited ; 24 Ind. 318; 11 Id. 369 ; 10 Id. 205 ; 6 Id. 309 ; Code of Civ. Pro. § 494). III. Such a defense is not frivolous, and the remedy is not by motion. It is a material allegation, and if not. properly pleaded in the complaint the remedy is by demurrer (Tamisier v. Cassard, 17 Abb. Pr. 187). John Cummins, opposed. I. If the clause of .the-answer demurred to is too defective to constitute any part of a defense, it should be stricken out on motion (Bliss' Code, p. 341; Townsend v. Norris, 2 Weekly Dig. 433; Smith v. Greenin, 2 Sandf. 702; Ketcham v. Zerega, 1 E. D. Smith, 553 ; Thomas v. Harrop, 7 How. Pr. 57. II. If it does not consist of new matter it cannot be-demurred to. The clause or part of answer here demurred to is more in the nature of a negative to plaintiff’s right to maintain the action. III. The answer is not frivolous (Tamisier v. Cassard, 17 Abb. Pr. 187). [MAJORITY — Barrett, J.] Barrett, J. I. The answer is demurrable. It attempts to set up new matter; that is, matter which could not be proved under a denial nor unless set up (Jackson v. Whedon, 1 E. D. Smith, 142; Savage v. Corn Ex. Fire Ins. Co., 4 Bosw. bottom of p. 15, and top of p. 16). II. And it is bad on demurrer, for the reason that no fact is stated—nothing but a conclusion of law. The action must of course be prosecuted in the name of the real party in interest, but whether it is so prosecuted depends upon the facts (Russell v. Clapp, 3 Code R. 65; Bentley v. Jones, 4 How. Pr. 204 ; Brown v. Ryckman, 12 How. Pr. 314; Witherspoon v. Van Dolar, 15 How. Pr. 266). There may be a question when ownership in another is pleaded (see Holstein v. Rice, 15 How. Pr. 1 and note), enough certainly to put the plaintiff to his demurrer; which is all that was held in Tamisier v. Cassard, 17 Abb. Pr. 187. None, however, where the averment is limited to the phraseology of the Code. Judgment for the plaintiff on the demurrer with costs, and with the usual leave to the defendant to amend his answer within twenty days, upon payment of such coste.