
    CASHMAN v. REYNOLDS.
    
      N. Y. Supreme Court, First Department, General Term;
    
      May, 1890.
    1. Amendment; right to sene answer as amendment to demurrer.] A defendant who has put in a demurrer to the complaint, cannot, within the period allowed for amendment of course, serve an answer as an amended pleading.
    2. The cases of Smith i>. Laird, 44 Hun, 530 ; Wise «. Gessner, 47 Id, 306, followed, and Robstelli r. Noxon, (Supm. Ct., 2nd Dept.) 17 Civ. Pro. B. 321; 24 State Bep. 894; 5 H. 7. Supp. 315 opposed.
    
    Appeal by defendants from an order denying motion to compel the plaintiff to accept service of answer.
    
      Thaddeus D. Kenneson, for appellants.
    
      Townsend Wandell, for respondent.
    
      
       See, also, cases reported in 20 Abb. N. C. 1 et seq., with note tin withdrawal and substitution of pleadings at page 4.
    
   Barrett, J.

This order should be affirmed upon the authority of Smith v. Laird (44 Hun, 530), and Wise v. Gessner (47 Id. 306). I desire, however, as I did not take part in these decisions, to express my full concurrence in the views therein expressed. The previous authorities are there sufficiently analyzed, and I find no General Term case later than Wise v. Gessner, taking a different view of the question under consideration, save Robstelli v. Noxon (17 Civ. Pro. Rep. 331; 24 State Rep. 894; 5 N. Y. Supp. 315). The latter case was decided by the General Term of the Second Department, and that court (Mr. Justice Pbatt delivering the principal opinion) declined to follow Smith v. Laird, holding that “ a demurrer is one form of answer,” and that there is nothing in section 542 of the Code which “implies that a demurrer cannot be regarded as an answer so long as it remains in the case.”

The conclusion which follows this postulate is entirely logical, for if a demurrer is an answer, it can undoubtedly be amended, as an answer, once, of course, within twenty days after its service. But I apprehend that a demurrer is not an answer in any legal sense. Section 487 of the Code provides that the only pleading on the part of the defendant is either a ■ demurrer or an answer. The defendant is nowhere permitted, as Mr. Justice Pbatt suggests, to answer the complaint “ by saying that it is not valid as a matter of law.” The answer is as clearly and precisely defined as the demurrer (Code, § 500). The fallacy of this postulate becomes apparent when the converse is presented. If, for example, the defendant was thus entitled to answer, where a demurrer was interposed within the previous- twenty days} he would equally be entitled to demur where an answer had been interposed within the like period. To sustain the latter position, under the reasoning of Bobstelli v. Eoxon, it would be necessary to hold that an answer is one form of demurrer, and that there is nothing in section 542 which implies that an answer cannot- be regarded as a demurrer so long as it remains in the case. Mr. Justice Pbatt also observes that his “ construction is sustained by a long line of cases,” four of which he cites, namely, Betts v. Kridell (20 Abb. N. C. 1; 13 Civ. Pro. Rep. 157) ; Frank v. Bush (2 Civ. Pro. Rep. 250); Cooper v. Jones (4 Sand. 699); White v. Mayor (5 Abb. 322).

The two first, are Special Term decisions of the city court. Betts v. Kridell was decided upon the authority, in part, of Frank v. Bush, which was preferred to Smith v. Laird. The other two cases seem to have no pertinence whatever to the question under consideration, and I confess my entire inability to follow Mr. Justice Pbatt’s observation that “in the case of Cooper v. Jones, the precise point was decided by six judges.”

I have read the report of Cooper v. Jones with extreme care, and I find that the only question there presented was whether, after a demurrer to an answer, the defendant may serve an amended answer, of course, within twenty days. The court held that such an amended answer might be so served—a proposition which admits of no doubt, but which is irrelevant to the precise question under discussion. It would have been quite different if the court had held that after a demurrer to an answer, the plaintiff might serve a reply, of course, within twenty days.

The case of White v. Mayor is equally inapplicable/ The only question there was whether the plaintiff could amend his complaint more than once, as of course. It is quite clear, therefore, that the learned court, in its refusal to follow Smith v. Laird, was not fortified by the authorities cited any more than it was by the formula that “ a demurrer is one form of answer.”

Looking at the question upon principle, it seems to us a somewhat whimsical misapplication of language to speak of amending a demurrer by an answer, or of amending an answer by a demurrer. One can be substituted for the other, but cannot be amended into the other. When an issue, whether of fact or law, is once raised, it must as such be disposed of. If you have demurred, you may amend your demurrer once. If you have answered, you may amend your answer once. But you cannot, by amendment, change the legal status of the issue. In other words, you cannot, by amendment, turn an issue of law into an issue of fact, or an issue of fact into an issue of law. That can only be done by withdrawing the one pleading and substituting the other. And this is the ordinary and well-established practice. For instance, when a demurrer to a complaint is overruled, after argument, the court usually gives the defendant leave not to amend, but to withdraw 1ns demurrer and answer over. But when the demurrer is sustained, the. plaintiff is given leave to amend his complaint. Again, if the demurrer.to a counterclaim in an answer is overruled, the plaintiff is given leave, not to amend, but to withdraw his demurrer and reply. If, however, the demurrer is sustained, the defendant has leave to amend. The object of the statute, liberally permitting amendments of course, within twenty days, is to enable parties to correct mistakes in their pleadings, and even to add to or otherwise perfect them. But they must do this upon the legal lines adopted. If they demur, they may thus perfect their case on the issue of law. If they answer, they may do likewise with regard to the issue of fact. If, however, they desire to abandon the legal issue, in its fundamental character, and thus necessarily to withdraw their pleading, and substitute in its place an equally well defined pleading of an inherently different character, they must appeal to judicial discretion.

I see no reason, therefore, for deviating from the well-considered cases of Smith v. Laird, and Wise v. Gessner, and the order should accordingly be affirmed, with costs.

Van Bbunt, P. J.

I concur in the foregoing opinion of Mr. Justice Barrett. Sections 488 to 499 inclusive, distinctly recognize that a demurrer and answer are different pleadings. They expressly provide that a demurrer shall perform an office which shall not be and cannot be done by answer. Sections 963, 964, 965, 966, further show that an answer and demurrer are distinct and different pleadings, as they raise issues of an entirely different nature.

Bartlett, J., concurred.  