
    Nettie Stern, Appellant, v. Millard Marcuse and Others, Defendants, Impleaded with August J. Kimmerle, Respondent.
    Second Department,
    May 3, 1907.
    Practice — new matter constituting defense, must be separately stated and numbered — demurrer to defense of new matter combined with denia...s.
    The. requirement of section 507 of the Code of Civil Procedure,, that defenses containing new matter must be separately stated and numbered, is mandatory, and the court is without power to refuse to require the defendant to comply with the section.
    The former rule that a demurrer will not lie to a defense of new- matter if a denial of a material part of the complaint is contained therein, does not now obtain.
    Jenks, J., dissented, with opinion.
    
      Appeal by tlie plaintiff, Nettie Stern, from an order of the Supreme Court, made at'tlie Westchester Special Term and entered in the office of the clerk of the county, of Westchester'on the 19th day of December, 1906, denying the plaintiff’s motion to compel the defendant Kimmerle to separately state and number, his defenses.
    
      Milton Mayer, for the appellant.
    
      David'Poss, for the respondent.
   Gaynor, J. :

This is an action to foreclose a mortgáge on real property. The complaint alleges the assignment of the bond and mortgage to the plaintiff by the mortgagee, the Harlem Savings Bank. Thé answer consists of an unscientific, rambling statement, such as á .layman. might possibly draw, in the middle of which is this: “Upon "information; and belief this defendant"denies that the Harlem-Savings Bank sold or assigned the said bond and mortgage to the plaintiff,- or that the plaintiff is the lawful owner or holder of" the said bond and mortgage, or possessed thereof.” All that can be made out of the rest is a claim that the mortgaged-property after the making of the mortgage was divided, title to part being conveyed to this answering defendant and the other part to another person, also a defendant, in a way that made the land of this answering defendant subject to the mortgage only second to the part owned' by the said other-defendant; and that the latter defendant paid the said ■ Harlem Savings Bank the whole of the said mortgage in discharge" thereof. This new matter is alleged as a defense.

This motion is in So many words to separate the said denial from the said defense of new matter. The case of Goldberg v. Utley,_■ cited in the opinion of Mr. Justice Jenks, has nothing whatever to-do with the question presented.- It merely decides -that-the Court of Appeals at that time had not the right to. entertain an appeal from an order made, on a motiqn like this, for the reason that it did not involve a substantial right. Nor does the - other case cited in tlie said opinion, O' Connor v. Virginia Passenger & Power Co., in any way touch the question; the quéstion was not in it at all. It only holds that the denial of a motion to have several causes of action separated and numbered, when it should have been granted, cannot prevent a. demurrer from being interposed for their'improper joinder in the same complaint. Is not their citation inadvertent, or in mistake of the question before us ?

The plaintiff is asking no favor but a matter of right, By express, provision of the Code of Civil Procedure defences of new matter must be separately stated and numbered ” (§ 507), the same as causes of action must be separate and numbered ” (§ 483). These are mandatory provisions — they are enjoined by the mandatory' word “ must ” — and wé-' have no right to disregard them. To do so would cause and encourage confusion and disorder. A defence may not be jumbled up with another or other defences, nor with a denial or denials. First come denials in an answer and then new matter constituting a defense, if there be any (§ 500).

It is true that the plaintiff might have refrained from making this motion-if she saw fit, and answered' or demurred to the defence of new- matter in its present mixed up condition; but that does not alter the case; she has the right to make the motion., and it is our positive duty'to grant it. The fact that our action is not subject to review is no reason for disregarding the statute ; on the contrary, it is reason why we'should be’careful to follow it. By a series of decisions, following Flechter v. Jones (64 Hun, 274), it was held up to very recently that a demurrer would not lie to a defence of new matter which had a denial of a material part of the complaint mixed up with it, for the reason (as was said) that the demurrer would not be good against the denial, and would therefore fail.- It is true that these decisions are'now abandoned, as I understand it, for the educated bar insisted that the defence could be demurred to without being separated at all; that the demurrer was not to the denial but to the defence of new matter; that, it was optional with the plaintiff whether he should move to separate; and many now wonder how such decisions came to be made. From the erroneous extreme of these decisions, we should not now go to the even more erroneous extreme of refusing to require defences to be separately stated at all.

The order should be reversed and the motion granted.

Woodward and Rich, JJ., concurred; Jenks, J., read for affirmance.'

Jenks, J.

(dissenting):

I dissent. The appeal is from an order of the Special Term deny^ ing a motion that the defendant Kimmerle separately state and number the alleged defenses. The right is but formal’, not substantial. (Goldberg v. Utley, 60 N. Y. 427.) Kimmerle, who, is made a party to this foreclosure action as asserting some interest in the premises, made separate answer.' His plea is that he owns a part of premises free from this mortgage, and hjs prayer is for affirmative relief, or, if that be denied, that his part' be excluded from the reach of the judgment, or at least the premises exclusive of his part be first sold, and if that sale do not satisfy the decree, he may take over the judgment so far as it is unsatisfied upon payment of the amount then due and the expenses of the sale.

I think that the pleader intended to set forth but a single counterclaim and that the pleading should thus be construed. The alleged “ denials ” are'to be read as subordinate to this plea, confined to it and-consistent with it. His-plea is in effect that such' proceedings were had that his part of the premises was freed from this mortgage, and that the defendant Marcuse, instead of taking a satisfaction thereof fro tanto, and in violation of his legal obligation, caused the mortgage to be assigned to this plaintiff in his own interest and this suit to be begun in that interest. In fine, the concern of the defendant is with this part of the premises only, and his position is that as to it there is no valid mortgage. ' .

The grievance stated by the appellant is that she cannot demur save to the entire answer. But the denial .of this motion does not hinder demurrer. (O'Connor v. Virginia Passenger & Power Co., 184 N. Y. 47.)

Order reversed, with ten dollars costs and. disbursements, and motion, granted, with costs.  