
    Simon Silberman, Plaintiff, v. The New Amsterdam Gas Co., Defendant.
    (Supreme Court, New York Special Term,
    December, 1899.)
    1. Trespass and assault — Forcible entry — Defenses predicated on a revocable license.
    Where a complaint for trespass, alleged to have been committed by a gas company upon property, is based upon a forcible entry and also upon an assault following the trespass, a defense that the defendant was invited to enter and was legally bound to do so, that entry was subsequently refused, and that it entered in spite of the refusal, does not present any defense to the assault, and none to the trespass, as such allegations merely show that the defendant had a revocable license to enter, and that it wrongfully entered after the license had been revoked.
    3. Same — Rule as to a partial defense.
    Such a defense is not good in mitigation of damages where it is not designated as partial, the rule being that a partial defense must be stated as such unless it is so obvious that there can be no possibility of dispute.
    
      Issues of law upon a demurrer to that part of the answer referred to in the opinion.
    The nature" of the action and the material facts are stated in the opinion.
    John Gruenberg, for plaintiff.
    Joseph J. Myers, for defendant.
   Giegerich, J.

The complaint proceeds upon trespass, founded upon a forcible entry, as well as upon a cause of action for assault and battery, following the trespass upon the property. A defense is set up which in substance is based upon an invitation to enter the premises, a legal duty to accept the invitation, a refusal by the plaintiff to fulfill the invitation by admission to the premises, and the fact that entry was then made notwithstanding the refusal. Upon demurrer to the defense, it is claimed by the defendant that the allegations are directed to the cause of action for a trespass upon the property,' and that, since the defense could not apply to the cause of action for assault, the omission of words applying it to the trespass is immaterial. Clearly, however, the defense thus sought to be set up discloses no justification for the trespass. The invitation to enter the premises could have implied only an invitation to enter peaceably, and the refusal of admission merely operated as a revocation of the invitation; in no aspect could the invitation be viewed as anything greater than a license, and according to the allegations of the defense, the trespass was not justified by the license, but was perpetrated solely because of its revocation. But, the defendant asserts, conceding the insufficiency of the defense, as in bar, the matter alleged should be viewed as proceeding in mitigation of damages as a partial defense. This contention must fail through the omission of an allegation that the defense was intended as a partial defense (Code Civ. Proc., § 508; Thompson v. Halbert, 109 N. Y. 329; Mason v. Dutcher, 33 N. T. Supp. 689), since, while it has been held that where the nature of the defense is partial, and so obviously that there can be no possibility of dispute, the special designation may be dispensed with (Howd v. Cole, 74 Hun, 121), in the present case the doubt as to the meaning of the defense is so clearly shown by the argument adopted in its support as to leave nothing for the court to add. The demurrer is sustained, with costs, with leave to amend within twenty days upon payment of costs.

Demurrer sustained, with costs, with leave to amend within twenty days.  