
    SUPREME COURT.
    Struver and others agt. The Ocean Insurance Company.
    In order to ascertain and determine whether a defence is a demurrer or an crostver, it is only necessary to ascertain whether it requires that any facts should be proved, or not.
    A defect in a complaint may arise from having too many or too few parties; and either defect appearing on the face of the complaint is the subject of demurrer.
    "Where the defendants in a portion of their answer took the objection of a want of parties in the complaint, held that it must be considered as a demurrer, and as they could not answer and demur to the same count in the complaint, .they must elect which they would abide by.
    
      
      New - York Special Term,
    October, 1858.
    Motion to compel defendants to elect whether they will rely upon their answer or demurrer.
   Clerke, Justice.

To determine whether a defence is a demurrer or an answer, it is only necessary to ascertain whether it requires that any facts should be proved or not. If it can be gathered from the face of the complaint that the facts set up in the defence are not controverted, then of course, there are no facts to be proved; and nothing is left for the court but to decide the legal principles deducible from the uncontroverted facts. In order to ascertain from the face of the complaint, whether the facts set up in the defence are the subject of dispute or not, it is not necessary that they should be affirmatively alleged in the complaint, this may be ascertained from the absence of the alleged essential materials to enable the plaintiff to maintain his action, as well as from express categorical statements. A defect evidently, in short, in a complaint, may arise from having too many or too few parties; and this defect from either cause, is according to the Code, one of the enumerated grounds of demurrer.

The objections taken by the defendants in the latter part of their defence, are of this character; the defect appears on the face of the complaint, the want of parties is the ground of the objection, this absence of parties whom the defendants maintain to be essential, is uncontroverted; there are no facts to be proved.

This portion of the defence is, therefore, a demurrer; and as a defendant cannot answer and demur to the same count of a complaint, the defendants in this action must elect whether they will abide by their answer or by the demurrer.

Motion granted, with $10 costs.  