
    Mary Jones, Respondent, v. Julius Bohm, Appellant.
    (City Court of New York, General Term,
    October, 1900.)
    Demurrer — Will not lie to matter pleaded in mitigation of damages — Code C. P., § 494.
    A demurrer will not lie to matter pleaded in an answer in mitigation of damages, as, under the Code of Civil Procedure, § 494, only matter pleaded by way of counterclaim or defense is demurrable.
    Appeal from an interlocutory judgment sustaining a demurrer and from an order denying a motion to compel the plaintiff to accept a proposed amended answer.
    James C. De La Mare, for appellant.
    Arthur J. Stern (Myer J. Stein, of counsel), for respondent.
   Conlan, J.

The record brings up for review two appeals: One, from an interlocutory judgment sustaining a demurrer to matter pleaded in the answer in mitigation of damages only, and the other, from an order denying the defendant’s motion to compel the plaintiff to accept a proposed amended answer.

As to the first appeal, we are of the opinion that the demurrer should have been overruled. The matter demurred to was pleaded in mitigation of damages and was, therefore, not the subject of a demurrer. Under section 494 of the Code of Civil Procedure only matter pleaded by way of counterclaim or defense, in an answer, can be demurred to. The order sustaining the demurrer will be overruled and the interlocutory judgment vacated. Costs of the appeal to appellant.

As to the second appeal, we agree with the order made. The defendant’s time to serve his proposed amended answer had clearly expired. The order should be affirmed, with costs to the respondent.

Hascall, J., concurs.

Order affirmed, with costs.  