
    Patrick J. Burke, Resp’t, v. The New York, N. H. & H. R. Co., App’lt.
    
      (New York, Superior Court, General Term,
    
    
      Filed May 4, 1891.)
    
    Answer—Defense—Separate statement.
    In an action brought against a railroad company to recover the penalty prescribed by chapter 185 of the Laws of 1857, for charging more than the legal fare, a portion of the answer was “ defendant reserving the objection that this action cannot be maintained by reason of the fact that the summons herein was not served upon the defendant by an officer authorized by law to collect an exección issued out of said superoir court, answers the complaint,” etc. Held, that a motion to strike out this portion of the answer, or, in the alternative, to amend it by stating unequivocally whether or not it was intended as a defense, and, if so, to separately state and number it, should be granted; for, if not issuable matter, it ought to be stricken out, and if issuable and relied upon as a defense, it. should be pleaded as such, and stated and numbered separately.
    Appeal from special term.
    Action against a railroad company to recover the penalty prescribed by Laws of 1857, chap. 185, for charging excessive fare.
    Defendant answered that “The defendant above named, by Page & Taft, its attorneys, reserving the objection that this action cannot be maintained, by reason of the fact that the summons herein was not served upon the defendant by an officer authorized by law to collect on execution issued out of the said superior court of the city of Mew York, and without prejudice, by appearing to defend to its right to insist upon the objection, answers the complaint herein, etc.”
    Plaintiff moved for an order striking out as irrelevant the above portion of the answer, or for an order requiring the defendant to make its answer more definite and certain by stating unequivocally whether or not it intends the words recited above as a defense, and if so, that it be stated as a defense and numbered separately.
    The motion was granted by Freedman, J., in the following ' opinion:
    “ If the objection sought to be reserved by the answer, and which is therein set forth before the statement of the first defense, does not consist of issuable matter, it ought to be stricken out. If it is intended to be issuable matter, and relied upon as a defense, it should be pleaded as such, and stated and numbered separately, so that the plaintiff, if he shall see fit, may test its sufficiency by motion or demurrer. Upon due consideration" of the pleadings, I have come to the conclusion that the motion to strike out should be granted, with ten dollars costs, unless the defendant within twenty days amend the answer by specifically pleading the matter referred to as a defense, and by separately stating and numbering such defense, and pay the said costs.”
    
      Page & Taft, for app’lt; Henry Wehle, for resp’t
   Per Curiam.

—The order is affirmed, with ten dollars costs, upon the opinion delivered at special term.

Sedgwick, Ch. J., and McAdam, J., concur.  