
    Continental Securities Company, and Clarence H. Vernon, Stockholders in the Interborough Rapid Transit Company, on Behalf of Themselves and All Other Stockholders Similarly Situated, and on Behalf of the Said Interborough Rapid Transit Company, Plaintiffs, v. August Belmont, Andrew Freedman, Emma Jourdan, as Sole Executrix of the Last Will and Testament of James Jourdan, Deceased, Gardiner M. Lane, Georgie A. McDonald, as Sole Executrix of the Last Will and Testament of John McDonald, Deceased, Walter G. Oakman, John Pierce, William A. Ried, Cornelius Vanderbilt, George W. Young, Walter Luttgen and The Interborough Rapid Transit Company, Defendants.
    (Supreme Court, Nassau Special Term for Motions,
    May, 1911.)
    Motions and orders — Motion papers — In general — Form and contents — Separate matters not to be included in a single motion.
    Pleading: Replication or reply and subsequent pleadings — Necessity for reply: Demurrer — In general — Withdrawal — Leave of court — Terms; Right to demur to answer or counterclaim—'When demurrer to answer lies.
    Where a defense .consisting of new matter is interposed the plaintiff in his discretion may either demur or rest upon the provisions of the Code of Civil Procedure that the defense is deemed to be controverted by traverse or avoidance as the case may require.
    Where plaintiff elects to demur to a defense consisting of new matter, the. demurrer may be withdrawn only by leave of the court.
    Where leave to withdraw the demurrer would cause distinct injury to the defendant, a motion for such relief should not be granted except upon terms which will make the defendant whole.
    Where a demurrer has been noticed for argument, costs before and after notice of trial should be awarded as a condition for an order granting leave to withdraw the demurrer.
    Whether plaintiff should be required to reply to the new matter should be the subject of a separate motion.
    Motion for leave to withdraw a demurrer to a defense consisting of new matter.
    
      Stephen M. Yeaman (J. Aspinwall Hodge, of counsel), for plaintiffs, for the motion.
    Davies, Auerbach, Cornell & Barry (Julien T. Davies, of counsel), for defendants, opposed.
    Nicoll, Anable, Lindsay & Duller (DeLancey Nicoll, of counsel), for the defendants Belmont et. als., opposed.
   Blackmar, J.

When a defense consisting of new matter is interposed, the plaintiff’ has the option, in his discretion, to-determine whether he will demur on the ground that it is insufficient in law on the face thereof, or will rest upon the provision of the Code that the defense is deemed to be controverted by traverse or avoidance as the case may require. It is left to the plaintiff’s discretion to determine which course he will adopt. In this case, the plaintiff elected to demur, and now seeks to withdraw the demurrer. This can only be done by leave of the court. If granting such permission would cause distinct injury to the defendants, due to the interposition of the demurrer and its subsequent withdrawal, the motion should not be granted, except upon terms which will make the defendants whole. I am not able to see how the defendants in this case can be prejudiced by the withdrawal of the demurrer. I do not think that it is for the court to determine whether the matter can be best disposed of on the demurrer or on the trial of the issues, for this question the plaintiff has, by our system of practice, the right to determine for himself, in the absence of' an order requiring a reply. It is not shown to me that the position of the defendants would be changed or prejudiced by an order granting leave to withdraw this demurrer. As the demurrer has been noticed for argument, costs before and after notice of trial should be awarded as a condition.

The question whether or not the plaintiff should be required to reply to the new matter should be the .subject of a separate motion, and upon the merits of this question I express no opinion. My decision is based upon the principle that the plaintiff, in the absence of an order of the court, should he permitted to decide for itself whether or not it will demur, and that the withdrawal of the demurrer will cause no injury to the defendants which cannot be compensated by awarding costs as a condition thereto.

The motion is granted on the condition that the plaintiff, within five days, pay to each of the defendants who have appeared by separate attorneys costs before and after notice of trial, namely, thirty dollars, and without prejudice to a motion to compel the plaintiff to reply. If the condition is not complied with, the motion is denied, with ten dollars costs.

Motion denied.  