
    Hugh N. Camp, App’lt, v. Arthur G. Bedell, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    Pleading—What allegation does not amount to dbmubeek—Remedy.
    In an action to recover damages for libel, a pleading called by the defendant an answer was served, which contained an allegation to the effect, that “the defendant, further answering, says that there are not sufficient facts therein stated to constitute a cause of action.” The plaintiff moved for an order to compel the defendant to elect between demurrer and answer, and to strike out one or the other. Held, that as the matter stated raised an objection which the defendant'was not required to raise by demurrer, and which he did not waive by answering, and having treated the pleading as a demurrer, and not having attempted thereby to save an objection which could only be raised by demurrer, the allegation is mere, surplusage, and may be stricken out as such upon proper motion; and that no demurrer has been interposed.
    Appeal from order denying motion to compel the defendant to elect between demurrer and answer, and to-strike out one or the other.
    
      D. H. Chamberlain, for app’lt; W. W. Niles, for resp’t.
   Van Brunt, P. J.

This action was brought for the purpose of recovering damages for libel, the complaint being in the usual form, and containing two causes of action. The defendant served on the plaintiff’s attorney a pleading called by him an answer in which he set up various defenses to said two causes of action. This pleading contained as to each cause of action the following allegation: “The defendant, further answering, says that there are not sufficient facts stated therein to constitute a cause of action.’r The plaintiff, thereupon, moved for an order to compel the defendant to elect whether he will abide by the demurrers to the several causes of action or by the answers contained in said papers, and to strike from the record the pleading not so elected, which motion was denied, and from the order thereupon entered this appeal is taken.

It is undoubtedly true that the defendant cannot demur and answer to the same cause of action, and that the demurrers and answers are separate and distinct pleadings, having different objects, raising different issues and requiring different modes of trial, and that they are not less separate and distinct if in form connected and on one paper. But we fail to find in the defendant’s pleading that any demurrer has been inserted therein. He designates it as an answer. The matter stated in the answer raised an objection which the defendant was not required to raise by demurrer, and which he did not waive by answering. This is an objection that he has a right to take even at the trial, although he might not have demurred, and although he may have answered without stating anything in said answer in respect thereto. The defendant not having treated the pleading as a demurrer, and not having attempted thereby to save an objection, which could only be raised by demurrer, we see no reason for designating the pleading by that name.

It is undoubtedly true that the allegation is out of place in an answer, although it is not waived if not taken by any pleading. The result is that the allegation is mere surplus-age, and might very well be stricken out as such, upon a motion made for that purpose. The allegation, however, cannot by any possibility do the plaintiff any harm. The plaintiff’s position is in no way changed because of the fact that the answer contains this needless allegation. We think therefore that upon the record no demurrer has been interposed, and as a consequence the plaintiff had no right to-claim an election by the defendant between a supposed demurrer and his answer.

The order should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.  