
    George W. Onderdonk, Appellant, v. Peale, Peacock & Kerr, Incorporated, Respondent.
    
      A defense containing a denial and new matter is not demurrable — an averment that a contract was executed in a State named is a denial of. an allegation that it was executed in another State.
    
    Where a denial of a material allegation of a complaint is joined with■ new matter and both are pleaded as one separate defense, such defense is not demurrable.
    A denial is not new matter and a demurrer will lie only to a defense consisting solely of new matter.
    An averment in an answer that a contract was .executed and delivered in the State of .New York constitutes a denial of an allegation in the complaint to the effect that it was executed and delivered in the Commonwealth of Pennsylvania.
    Appeal by the plaintiff, George W. Onderdonk, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the. office of the clerk of the county of Rock-land on the 5th day of March, 1904, upon the decision of the court, rendered alter á trial at the Rockland Special Term, as overrules the plaintiff’s demurrer to the second defense to- certain causes of action set forth in the complaint.
    
      J. Du Pratt White, for the appellant.
    
      Charles B. Blair, for the respondent.
   Willard Bartlett, J.:

■ The plaintiff, who is a resident of this State, brings this action as the assignee of the Sterling Coal Company, a Pennsylvania corporation, to recover certain sums of money alleged to be due under a contract between that company and the defendant, which is also a . corporation organized and existing under and by virtue of the laws of Pennsylvania. The contract, a copy of which is attached to the co.mplaint and made a part thereof, is alleged to have been executed and mutually delivered in the Commonwealth of Pennsylvania on or about the 26th'day of August, 1901. . The answer, after inter-^ ' posing various denials, sets up various further and separate defenses, to .eight of which the plaintiff demurred. The demurrer has been overruled at Special Term and the plaintiff has appealed from the interlocutory judgment so far as it relates to two. of these demurrers, namely: (1) The second defense to the first, second, third and fourth causes of action; and (2) the second'defense to the fifth cause of action. -

(1) The second defense to, the first, second, third and fourth causes of action alleges' that the contract annexed to the complaint was executed and actually delivered in the State of New York on or about the 26th day of August, 1901, at which time the Sterling Coal Company had’not complied with the provisions of. section 15 bf the. 'General Corporation Law of the State of New York, as amended ■ (relating to the certificate of authority of a foreign . stock corporation other than a" moneyed corporation to do business within this State), and that'by reason of that fact the - plaintiff is not entitled to maintain any action in this State upon the said contract of his assignor. The briefs of both parties upon this appeal are devoted solely to the discussion of the‘question whether the execution and delivery of the contract constituted doing business within this State within the meaning of the statutory provision cited; but I think the appeal must be disposed of without passing upon that question. The averment in the defense now under consideration, to the effect that the contract was executed and actually delivered in the State of New York, is a denial of the allegation in the complaint to the effect that it was executed and delivered in the Commonwealth of Pennsylvania. Where a denial of a material allegation of the complaint is joined with new matter and both are pleaded as one separate defense, such so-called defense is not demurrable. The only sort of a defense which may be attacked by ' demurrer is a defense consisting of new matter. (Code Civ. Proc. § 494.) The interpolation of a denial is the averment of matter which is not new and renders the so-called defense unassailable by demurrer. (Garrett v. Wood, 27 App. Div. 312.) The new matter contemplated by the Code provision admits and seeks to avoid the cause of action set out in the complaint. (Bellinger v. Craigue, 31 Barb. 534, 537.) The learned court at Special Term, therefore, was-, right in overruling the demurrer to this defense irrespective of any-question as to whether the mere execution and delivery of a contract here amounted to doing business, in the State of New York.

(2) The second defense to the fifth cause of action is substantially the same as the defense already considered, except that it omits any averment as to the jurisdiction within which the contract was executed and delivered. In effect, therefore, it admits the allegation óf the complaint that such execution and delivery took place in the Commonwealth of Pennsylvania. If such were the fact, the failure of the Sterling Coal Company to obtain the certificate prescribed by section 15 of the General Corporation Law of this State (Laws of 1892, chap. 687, as amd. by Laws of 1901, chap. 538) could not constitute a bar to the maintenance of the action in the absence of any averment to the effect that such corporation was doing business within this State — and there is no such averment in this part of the answer. It follows that the facts therein stated were insufficient in law to constitute a defense, and the demurrer to this defense should have been sustained.

Hirschberg, P. J., Jenks and Hooker, JJ., concurred.

Interlocutory judgment affirmed, so far as it Overrules the plaintiff’s demurrer to the séc'ond defense to the first, second, third and fourth causes of action,-and reversed, so far as ■ it overrules the demurrer to the second defense to the fifth caiise of action, and demurrer .to the latter defense sustained, no costs of this appeal to either party.  