
    ELIZABETH S. BREVOORT, Plaintiff and Appellant, v. HEHRY L. BREVOORT, Defendant and Respondent.
    i. pleading.
    1. ASS WEE.
    
      (a.) Ownership, when not necessary to be pleaded affirmatively.
    
    1. In an action of trover, defendant need not plead as an affirmative defense that he owned the property at the commencement of the action, nor show the source of, or mode by which he acquired, his title. A general denial of plaintiff's ownership suffices.
    (6.) Gift, title by.
    
    
      1. Where the strongest phrase in the pleading is “that the plaintiff relinquished all ownership ” in the property, without any averment that defendant thereupon took possession as owner, no defense is set up.
    
    
      (a) So held in an action by wife against the husband, the property in question being gifts made by him to her, when the answer alleged that the plaintiff violently threw the property from her, declaring that she returned it to defendant; that she would not keep it; and that she relinquished all ownership in it; and that defendfant then took back the property as she desired, and kept possession of it.
    2. Demurrer to answer.
    
      (a). Judgment on overruling a demurrer to an answer which does not go in bar of the whole cause of action, what improper.
    
    1. An order directing that defendant have judgment in the action in his favor, and a judgment entered therein adjudging that the complaint be dismissed, are erroneous.
    
    1. Appeal. Such erroneous order and judgment will be reversed on appeal.
    1. Semble. There should only be an interlocutory order and judgment, simply overruling the demurrer, and perhaps adjudging the answer so far as it extends to be a good defense.
    Before Monell, Ch. J., and Sedgwick, J.
    
      Decided December 6, 1875.
    Appeal from order overruling demurrer to a separate defense, and from judgment thereon in favor of defendant.
    The complaint was for the conversion by the defendant of certain personal property, part of which were several diamond rings.
    The answer set up as to these rings a separate defense, and averred : ‘ ‘ That the said plaintiff, while in a room in his father’s house, took from her finger the engagement-ring, which this defendant had given her, and from her ears a pair of diamond ear-rings, the gift of this defendant, and from her pocket-book a small amount of money, given her by this defendant, and threw all said articles violently on the bed, saying she would not keep anything which was received from the defendant or his family, but returned them all to him. This defendant tried to induce said plaintiff to resume the possession of said rings, but she, in an insulting manner, repeated her remarks that she would not keep anything received from him, his family, or intimate friends; that she would not keep them, and relinquished all ownership therein. This defendant then took, as she desired, his gifts to her, back again, and kept possession of them. That said engagement-ring and said ear-rings are the articles claimed by plaintiff, and by defendant admitted to be in his possession.”
    The plaintiff demurred to this defense on the ground that it did not state facts sufficient to constitute a defense.
    The order entered was, that the demurrer be overruled and that the defendant have judgment in said action in his favor. Judgment was entered, that the defendant havejudgment, that the.plain tiff’s complaint be dismissed. The appeal is from the order and from the judgment.
    
      Thomas M. Wheeler, attorney, and of counsel for appellant, urged :
    I .If Mr. Justice Speir is right in his opinion that the facts stated in the second defense constitute a defense, then the order should have been one overruling the demurrer. The order made gives the defendant judgment in the action. This is erroneous. By the Code, sec. 168, the facts set forth in the answer are deemed to be denied, and these issues of fact, as well as the issues formed by the denial of the allegations of the complaint, must be tried.
    II. The order being erroneous, the judgment founded on this order is erroneous.
    III. The second defense relates only to the diamond ring and ear-rings mentioned in the complaint and that leaves all the issues formed by the first defense, in regard to the other articles mentioned in the complaint to be tried. The second defense is that the plaintiff gave to the defendant the diamond ring and ear-rings. The only question is whether the allegations contained therein constitute such a. gift. The allegations are that the plaintiff, while in a state which induced the belief that she was out of her mind, and while in a violent passion, threw the things upon the bed, and said she would have nothing more to do with them, and returned them to the defendant. This certainly is not enough to constitute a voluntary gift, and as it does not, the demurrer should be sustained.
    
      Van Winkle, Candler & Jay, attorneys, and John E. Parsons, of counsel for respondent, urged:
    I. The defense demurred to alleges that the plaintiff made an absolute return to the defendant of the articles admitted to be in his possession, characterized by the most positive expression of her intention to have nothing more to do with them. This not only puts in issue the ownership of the particular articles, but claims the property in them to be in the defendant, and to have been received by him by transfer from the plaintiff, and the only question is whether a wife can make a gift to her husband of articles of personal property.
    II. Absolute judgment was, by the defendant, entered upon the order overruling the demurrer. This was not authorized by the order, but the remedy to obtain relief was by motion, not by appeal. The defendant was entitled to have the demurrer overruled, and to judgment for costs. This the order directed, and it can not be disturbed. The judgment roll shows added a postea assuming to give absolute judgment for the defendant. The postea is signed by no one, and of itself has no legal effect. If it were not suitable to enter the judgment in that form, the matter should have been suggested to the defendant’s attorneys, and if they insisted upon their practice, application should have been made to the special term; though Wightman v. Shankland (18 How. Pr. 79), assumes that final judgment is proper.
   By the Court.—Sedgwick, J.

The allegations of the second defense have no special value in taking issue upon the complaint. Under general denials the defendant could have put in evidence all facts relative to the ownership or conversion of the property. The plaintiff, however, demurred, and the question mooted was, whether the answer sufficiently averred that the defendant was owner of. the rings, at the beginning of the action, by gift from the plaintiff.

To take issue upon the plaintiff’s ownership, it was immaterial to allege the former relations of the parties, or the manner in which the plaintiff obtained the rings, if she were the owner, or the manner in which the defendant obtained them if he were the owner, or who was the owner if she was not, or the talk of the parties on any material or immaterial matters, or the manner of either party at any stage of the quarrel. The defense intermingles these matters, using words in a colloquial sense in such manner that the allegations are equivocal, and the rule should be applied that that construction should be adopted which is most unfavorable to the pleader.

There are, I think, two fatal defects. The first is, that all the special averments may be true, and yet when the action was begun the allegation of the complaint that the plaintiff was owner may have been true. There is nothing equivalent to an allegation that the defendant remained the owner from the time of the plaintiff’s gift to him down to the bringing of the action. Second. It does not appear by the answer that the rings were delivered by the plaintiff to the defendant as a gift, or that he took them as such. Delivery and acceptance are as necessary to a parol gift as to a deed of gift. The gift “ must be the mutual consent and concurrent will of both parties” (2 Kent's Comm. marg. p. 438). There are matters of evidence in the answer as to a gift, but they require the construetion of a jury before their effect can be ascertained. There is no averment that the plaintiff intended to give or to transfer the title, or that the defendant accepted the gifts. Both are necessary to show that the title was devolved from the plaintiff upon the defendant. There are words of legal and certain meaning which would imply all this, but the answer does not use them. The strongest phrase is, that the plaintiff “relinquished all ownership.” GKve.-to this the most meaning that may be, there is no averment connected therewith that the defendant thereupon took possession as owner. The answer says, “ This defendant then took, as she desired, his gifts to her, back again, and kept possession of them.” This is descriptive of certain things that he did, which may have all been done, and yet he have had no purpose of becoming the owner.

On the merits I think the demurrer should have been sustained.

The order entered directed “ that the defendant have judgment in said action in his favor,” and the judgment adjudged “ that the plaintiff’s complaint be dismissed.”

When the defendant’s plea goes to bar the action, if the plaintiff demur to it, and the demurrer is determined in favor of the plea, judgment of nil capiat should be entered, notwithstanding there may be also one or more issues of fact, because upon the whole it appears that the plaintiff has no cause of action (2 Tidd’s Pr. marg. p.741; Cooke v. Sayer, 2 Burr. 754). In this case the issue made by the demurrer related to a part only of the property in dispute. As to the other part, the matters settled by the demurrer determined nothing. At the most, there should have been .interlocutory judgment to stand upon the record until all the issues had been tried, when final judgment on the whole case should be entered.

If such an interlocutory judgment had been entered in favor of defendant, it seems to me it would have been conclusive at all subsequent stages of the action as to the existence of the facts set out in the pleading demurred to (Cutler v. Wright, 22 N. Y. 478, opinion of Judge Davies), or at least of such facts as were not involved in the issues of fact (Id. 482, opinion of Judge Seeder). “If there are other issues involving the same facts, they are not affected by the demurrer.” (1 Chitty on Plead. 662). In the present case, the issues of fact made outside of the one raised by the separate defense that has been considered, do not involve any matter examined upon the demurrer, excepting, perhaps, an allegation in the first defense that the defendant denied that he had converted any of the articles claimed by the plaintiff. But as to the earrings, this would be immaterial, it being otherwise determined that the defendant owned them. Therefore, to enable the plaintiff to show that in fact she owned the ear-rings, the demurrer and the judgment against her upon it should be removed from the record by her procuring leave to withdraw the demurrer.

I am of opinion that the order and judgment appealed from should be reversed with costs to appellant, to abide the event of the action.

Mohell, Ch. J., concurred.  