
    Smead, Collard & Hughes v. Chrisfield & Peale.
    1. The filing of a demurrer and an answer, .to the same stated cause of action, is not permissible. In such case, a motion to compel an election will be granted.
    2. A motion to strike out specified defenses from an answer, for alleged uncertainty, will not be entertained.
    Special Term. — Action in attachment, to recover from Chrisfield & Peale, as payees and indorsers of four promissory notes. Samuel Peale, one of the defendants, has filed a general demurrer to the petition, and, at the same time, has filed his answer, alleging three defenses to the action.
    Plaintiff now moves to strike out the answer and demurrer, on the ground that the defendants can not demur and plead to the same matter, at the same time.
    
      Tilden, Rairden & Curwen, for plaintiffs.
    
      Collins & Herron, for defendants.
   Storer, J.

The defendants demur to the whole petition; they have also filed their answer.

The plaintiffs move to strike out the demurrer, and the first and third clauses of the’ answer for irrelevancy.

The question made on, these pleadings is, can the defendants demur and ■ answer, at the same time, to the whole petition 1

By section 84 of the - code, the only pleadings permitted are an answer or demurrer; section 87 prescribes the causes of demurrer, and requires that they should be definitely stated; by- section 91, the defendant may demur to one or more of the several causes of an action stated in the petition, and answer to the residue; by section 136, when a demurrer is overruled the party may have leave to answer or reply.

These sections, as well as the whole object of the code, clearly indicate what the dfefendant is permitted to do.

He can not demur to the whole petition, and answer it at the same time; this was the old rule in pleading; no defendant could demur and plead to the same count in the declaration, and this was also the proceeding in chancery. We are not inclined to strike out any pleading, except in such eases, where the matters set forth are frivolous, and clearly improper to be stated; but we have power to compel the defendants to elect between their demurrer and their answer. If the first is insisted on, the last must be withdrawn; and on the other hand, if the answer is relied on, the demurrer should be retracted. If the answer is retained, we will not entertain the motion to strike out the first and third clauses, but will give the plaintiff leave to file his application in the proper form, to compel the defendant to make the clauses in his answer more definite and certain.

This will satisfy the justice of the case, and protect the rights of the parties.

The defendant must make his election as indicated. The motion to strike out the demurrer, and the several clauses in the answer, is overruled.  