
    (32 Misc. Rep. 638.)
    JONES v. BOHM.
    (City Court of New York,
    General Term.
    October 29, 1900.)
    1. Damages—Pleading—Mitigation—Demurrer.
    Under Code Civ. Proc. § 494, which provides that plaintiff may demur to a counterclaim or a defense consisting of new matter, matter pleaded in mitigation of damages is not subject to demurrer.
    2. Amended Answer—Piling—Motion—Acceptance.
    Where the time to file an amended answer had expired, a motion to compel plaintiff to accept the proposed amended answer was properly overruled.
    Appeal from special term.
    Action by Mary Jones against Julius Bohm. From a judgment sustaining a demurrer to a portion of the answer, and from an order denying defendant’s motion to compel plaintiff to accept an amended answer, defendant appeals. Judgment sustaining the demurrer overruled; the order denying defendant’s motion sustained.
    Argued before CONLAN and HASCALL, JJ.
    James C. De La Mare, for appellant.
    Arthur J. Stern, for respondent.
   CONLAN, J.

The record brings up for review two appeals,—one from an interlocutory judgment sustaining a demurrer to matter pleaded in the answer in mitigation of damages only; the other from an order denying defendant’s motion to compel the plaintiff to accept a proposed amended answer.

As to the first appeal, we are of the opinion that the demurrer should have been overruled. The matter demurred to was pleaded in mitigation of damages, and was therefore not the subject of a demurrer. Under section 494 of the Code of Civil Procedure, only matter pleaded by way of counterclaim or defense in an answer can be demurred to. The order sustaining the demurrer will be overruled, and the interlocutory judgment vacated, costs of the appeal to appellant.

As to the second appeal, we agree with the order made. Defendant’s time to serve his proposed amended answer had clearly expired. The order should be affirmed, with costs to the respondent.

HASCALL, J., concurs.  