
    Mary Bottom, Plaintiff, v. Chandler A. Chamberlain, et al., Defendants.
    (Supreme Court, Cattaraugus Special Term,
    November, 1897.)
    , Foreclosure What is a sufficient statement that no other action for the mortgage debt has been brought — Code Civil Procedure, §§ 488* 1629. '-
    A demurrer can be interposed to a complaint only in the cases specified in Code of Civil- Procedure* § 488; and a complaint in form, closure which alleges that “ no proceedings' have been bad at law or otherwise to the knowledge and belief of said1 plaintiff for the recovery of the said sum secured" by said bond and mortgage or any part thereof,’' is not demurrable, although the pleader has not used the precise language of Code of Civil Procedure, § 1629, requiring the complaint, in such an action, tó state “ whether any other action has been brought to recover any other part of the mortgage debt, and, if so, whether any part thereof has been collected.”
    Demurrer to complaint in an action to foreclose a mortgage.
    Ansley & Spencer, for plaintiff.
    E. D. Northrup, for defendants.
   Woodward, J.

The defendant in this action, brought to foreclose a certain mortgage, demurs to the complaint of the plaintiff “ upon the following grounds and objections thereto that appear upon the face thereof, that the said complaint does not state facts sufficient to constitute a cause of action.” The defendant bases his contention upon the fact that the plaintiff has omitted to state in the complaint, as required by section 1629, “ whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part thereof has been collected.”

The plaintiff, in her-complaint, sets forth that “"the plaintiff further shows, that no proceedings have been had at law or otherwise to the knowledge and belief of the said plaintiff for the recovery of the said sum secured by the said bond and mortgage or any part thereof.”

Whether the plaintiff is bound to make a “ distinct averment in the terms of the statute,” in stating her cause of action, as. required by the old chancery practice (4 Paige, 549), it is not necessary here to decide. The Code of Civil Procedure fixes the conditions under which the defendant may demur, and this case-does not come within the provisions of the Code, which provides, as follows:

“ The defendant may demur to the complaint, where one or more of the following objections thereto appear upon the face thereof:

“ That the court has not jurisdiction of the person of the deféndant;

“ That the court has not jurisdiction of the subject of the action;

“ That the plaintiff has not legal capacity to sue;

'. “ That there is another action pending between the same parties, -for the same canse; - ■ ■

“ That there is- a misjoinder of parties plaintiff;

“ That there is a defect of parties, plaintiff or defendant; ■

■“ That causes of action have been improperly united;

“ That the complaint does not state facts sufficient to constitute' a cause of action.”.

It does not appear upon the face of the complaint in this action “that there is another action pending between the same parties, for thé same cause.” On the contrary, the- plaintiff alleges that “ no proceedings have been had at law or otherwise, to the knowledge and belief of said plaintiff for the recovery of the' s’aid sum secured by said bond and mortgage or any part thereof,” and the mere fact that this allegation does not follow the exact language of the -Code is of no consequence in -so far as tbé demurrer is concerned. '

■ ' “ Special demurrers, as known to the former practice,” says -Judge Andrews in'delivering the opinion of the court in the case of Marie v. Garrison, 83 N. Y. 14, “have no place in our present system-of pleading. The Code authorizes a demurrer for specific causes,' and no pleading is demurrable unless it is subject to , one or more of the objections specified in the section defining the grounds of • demurrer. See § 488, Code of Civil Procedure. A demurrer to a complaint for insufficiency can only be sustained When it appears that, admitting all the facts alleged, it presents ' ho cause of action whatever. It is not sufficient that the facts are ■imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein, by reasonable and fair intendment, and facts impliedly averred are traversable in the same manner .as though directly averred. 1 Chitty’s Pl. 713; Haight v. Holley, 3 Wend. 258; Prindle v. Caruthers, 15 N. Y. 425. The remedy for indefinitehess is not by demurrer, ■ but by motion..”

“ It must be assumed, at the outset,” says Chief Judge Ruger in the case of Milliken v. Western Union Tel. Co., 110 N. Y. 403, in delivering the opinion of the court, “that the facts stated therein, as.well as such as may,.by reasonable and fair intendment, be implied from the; allegations made,, are true, i It is not sufficient, 'to' sustain a demurrer, to show that the facts are imperfectly and informally averred, or that the pleading lacks definiteness or precision, or that the material facts are argumentatively stated. Lorillard v. Clyde, 86 N. Y. 384; Marie v. Garrison, 83 id. 14 * * * The present system of pleading does not require that the conclusions of law should be set forth in the pleading, provided the court can see, from any point of view, from the facts stated that a legal obligation rested upon the defendant. Eno v. Woodworth, 4 N. Y. 249.”

The authorities are all in accord upon this question; a demurrer cannot he interposed except in the cases specified in the Code of Civil Procedure,, and the complaint in this action not coming under any of the specified objections, thé demurrer is overruled, with costs.

Demurrer overruled, with costs.  