
    Frederick E. Bates, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    Third Department,
    December, 1905.
    Demurrer—when single defense is divided into two- paragraphs, a demurrer to both thereof is not bad in form.
    As,a separate defense to an action founded.on the negligence of the defendant in setting Are to plaintiff’s house,, the answer, in substance, alleged in paragraph 3 that the plaintiff was insured against fire in a certain insurance company, and that said company should have been joined as a party, and in paragraph 4 alleged that said insurance company was a domestic corporation.
    Plaintiff demurred to “the affirmative defense ■ contained in the answer / , . * * * set forth in subdivisions third and fourth Of said answer ’’ on the . ground that it did not state a defense. ■ ■ .■ ,
    
      Meld; that the form of demurrer was proper and should not be construed as a . demurrer to separate parts of the defense;
    That though divided into two paragraphs,, but one' separate defense was stated, and to- this as a whole the plaintiff demurred, ‘though referring to both paragraphs.
    
      Held, also, that a further demurfer to said paragraph 3 alone on the same, ground, though had in being'a demurrer to a portion of a defense, was mere . surplusage.
    Appeal by the defendant,. The Delaware, Lackawanna and Western Railroad Company, from an interlocutory ¡judgment of" the^ Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 3d day of June, 1905, upon the decision of the court, rendered after a trial at the Tompkins Special Term, sustaining the plaintiff’s demurrer to one of the defenses set up in the defendant’s answer. i
    
      Halliday & Denton, for the appellant.
    
      George B. Davis, for the respondent.
   Parker, P. J.:

■ The action-is to recover damages against the defendant for negligently setting tire to the plaintiff’s house, by reason of which it was entirely burned. The defendant answers and sets up two defenses: First,- A denial of all the charges made in the complaint, except the incorporation, etc., of the defendant, and that a demand has been-made by the plaintiff for compensation for his loss and a refusal by the defendant to pay the same¡

This denial is contained in two different subdivisions of the answer, numbered first and second. Why two subdivisions were used is not apparent. The two contain but one defense, viz., a denial of the'facts upon which the plaintiff bases his cause of action.

Second. The other defense is, in substance, that the plaintiff’s said property was insured by the Tompkins County Co-operative Fire Insurance Company against loss or damage by fire, and that' such company has an equitable interest in the alleged cause of action set forth in the complaint, and that such insurance company was, therefore, a necessary party to this action, and that it should, therefore, be joined in this action either as plaintiff or defendant; and such non-joinder was pleaded as a defense to this action; also, that such insurance company was a domestic corporation organized under the laws of the State of Flew York.

Two subdivisions of the answer are used to set forth this affirmative defense, the one numbered “ Third,” the other numbered <£ Fourth.” The part contained in the 4th subdivision was the allegation as to Such insurance company being a domestic corporation, last above stated. All the other averments constituting this defense were contained in the 3d subdivision. Why it was determined to use a fourth subdivision in stating this defense is not apparent.

In response to this answer the plaintiff has interposed a demurrer. It is substantially as follows: “ The plaintiff hereby demurs to the affirmative defense contained in the answer of the defendant herein and which is set forth in subdivisions Third and Fourth of said answer, on the ground that each of the same is insufficient in law upon the face thereof, and do not state any facts which constitute a defense to said action.”

It is. urged by the defendant that this demurrer is bad in form and is, therefore, not well taken, beóause it is a demurrer to each of the subdivisions 3d and 4t;h. ' Its counsel -argues tliat a demurrer to séparate parts of a defense will not be sustained; that for the purpose of determining its sufficiency- the defense is to be construed in its entirety.”

I do not construe this demurrer as being one to each of such subdivisions separately. It expressly states that it is to the defense set up in the two together, and I think it plain that the pleader intended by the use of the phrase “ each of the saíne ” to .mean that the facts set forth' in both of "such subdivisions were -instifficient. .The criticism of the defendant’s counsel on this language is hardly a fair or reasonable one. It was the whole defense that was demurred to, and that is stated to be in both those subdivisions. The form of this demurrer is, therefore, not .amenable to the defendant’s •criticism and, therefore, as I understand the defendant’s position, it should be sustained. . ■

The plaintiff,, after stating his demurrer ..and the grounds, thereof, as above stated,, proceeds to further demur “ to the allegation set forth in subdivision Third of said answer, that the property,” etc.,repeating the allegations therein in detail, but leaving out entirely the matters contained in the 4th subdivision, claims that such allegations are insufficient in law, and upon their face, to constitute a defense. .

The defendant claims that this is bad'-iir'form ; that it is. a selection of a part of the defense .only, and,, therefore, Cannot be sustained. That is true. But it is an attempt to demur to the defense of non-j.oinder of the insurance company as a party that is to. the same defense to which the demurrer first above stated was well pleaded, There was" but one. defense pleaded in the -3d and 4th subdivisions, v-iz., the non-joinder of a necessary party, and each effort of the plaintiff was to demur to that defense. His first effort we hold to be sufficient in form and to be well taken, and upon this the judgment at Special Term can'be sustained. The second effort to demur , to the same defense was. a failure,, but it was an utterly unnecessary effort, not needed to obtain a judgment sustaining a demurrer to that defense, and so that effort, and all the language used in that effort, may be regarded as surplusage.

I have, not examined, on its merits, the question of the sufficiency of the defense of non-joinder, because no claim that it was sufficient as a defense has been advanced by the defendant on this appeal.

The judgment sustaining the demurrer to that defense at Special Term was properly rendered and should be affirmed/

All concurred.

Interlocutory judgment affirmed-, with costs', with-usual 'leave to defendant to amend upon usual terms.  