General

Frank Keenan, Appellant, v. Morris Milk, Respondent, and Alexander Milk, Defendant

166 A.D. 935·New York Supreme Court, Appellate Division·1915·NY

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Opinion

Frank Keenan, Appellant, v. Morris Milk, Respondent, and Alexander Milk, Defendant. [MAJORITY] The matters alleged in the “first separate defense” in the answer of defendant Morris Milk do not constitute a defense to the cause of action set forth in the complaint. These matters were provable under the denials of the answer, and it was not proper pleading to set them up as an affirmative defense. Therefore, the motion of plaintiff to sustain his demurrer to these matters when pleaded as a defense should have been granted. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.