
    JOHN RYAN, Plaintiff, v. THE MAYOR, &c., OF NEW YORK, Defendant.
    r. DEMURRER TO ONE OF SEVERAL DEFENSES, ON THE GROUND OF INSUFFICIENCY.
    1. Order sustaining demurrer with leave to defendant to amend. Effect of.
    
      {a.) Determination. Such order is a determination that the averments in the defense demurred to constitute no defense ; and remaining unreviewed, the determination is conclusive on the trial of the cause.
    
    EL ANSWER.
    1. Implied denial, what is not.
    
      (a.) A denial of an averment of rendition of services in a certain capacity is not a denial of an averment of recognition and employment in such capacity.
    
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    
      Decided March 5, 1877.
    
      Exceptions heard at general term.
    
    The action was brought by the plaintiff to recover four months’ salary, to wit, from September 1, 1871, to January 1, 1872, as attendant on and messenger of the superior court.
    The complaint and answer were as follows :
    ‘‘ The complaint of the plaintiff respectfully shows to the court:
    
      “First. That the defendants are a municipal corporation organized and existing under and by virtue of their ancient charters and the laws and statutes of the State of New York.
    
      “Second. That under the provisions of an act of the legislature of the State, passed April 11, 1849, constituting section ‘28’ of the Code of Procedure, this plaintiff was appointed by the board of supervisors of the county of New York, in or about the month of February, 1869, an attendant and messenger of the superior court of the city of New York, and employed for no definite period to attend upon the said court, and to perform the duties required to be performed by him.
    
      “Third. That thereupon he entered upon the performance of his duties as such attendant and messenger, and continued to perform the same up to or about June 15, 1874, under and by the direction of the several judges of said court, who recognized and employed this plaintiff in and about said court as such attendant.
    
      “Fourth. That by a resolution of the board of supervisors of the county of New York, duly passed on or about February 13, 1869, the compensation to be paid this plaintiff was fixed at one thousand dollars per annum.
    
      “Fifth. That the plaintiff has been paid for his services as attendant and messenger upon the said court as aforesaid at the said rate of one thousand dollars per annum up to the month of September, 1871, and that for the months of September, October, November and December, 1871, he has not been paid, and there is now due therefore at the said rate the sum of §333.33 with interest.
    
      “Sixth. That the claim of this plaintiff has been presented to the comptroller of the defendants, and more than thirty days have elapsed since such presentation and payment demanded, and that said claim has not been paid, and still remains due to the plaintiff, &o.”
    Defendants’ answer to the complaint was as follows:
    
      “First. Defendants aver that on February 13,1869, the board of supervisors of the county of New York had no power, authority or jurisdiction to appoint the plaintiff to the office of messenger or attendant as alleged in the complaint herein. That the said office of the plaintiff had not theretofore existed, and pursuant to section 4 of chapter 854 of the Laios of 1868, the said board of supervisors were prohibited from creating the same.
    “Second. And as a second and further defense herein, defendants deny that the plaintiff performed any service whatever as attendant and messenger in the superior court in the city of New York, during the months of September, October, N ovember and December, 1871.
    “Defendants demand that said complaint be dismissed with costs.”
    The plaintiff demurred to the first defense for insufficiency.
    The demurrer, after argument, was sustained at special term, and an order entered sustaining the demurrer and giving defendant leave to amend. Defendant neither appealed from the order nor amended his pleading.
    In this condition of the pleadings, the case came on for trial before the court and a jury.
    On the trial the court directed a verdict for the plaintiff for the full amount, and ordered defendant’s exceptions .to be heard in the first instance at general term.
    
      Elliott Sandford, attorney, and of counsel, for plaintiff, on the points decided by the court, urged:
    I. When the action was tried below, the case stood as if .the first defense had never been pleaded. A defendant cannot avail himself at the trial of defenses to which demurrers have been interposed and sustained (Baldwin v. U. S. Telegraph Co., 1 Lans. 125, 135). The only issue, therefore, to be considered at the trial, .was the rendition of services.
    II. During the trial, defendant’s attorney moved to dismiss the complaint for the reason that the plaintiff had not shown that he had been recognized as an officer by the judges. The motion was correctly denied, for the reason that there was no such issue in the case, the complaint alleging that such was the fact and the answer not denying it. furthermore, there was proof already before the court that plaintiff had been employed and rendered service under the eye of the court, and that, in law, was an appointment and a recognition.
    
      Win. C. Whitney, counsel to the corporation, and Charles P. Miller, of counsel for defendants, on the points decided by the court, urged:
    The position taken by defendants is, that the allegation in the second paragraph or subdivision of their answer, which denies “that plaintiff performed any services whatever, as an attendant and messenger in the superior court,” during the months for which suit is brought, raises the issue fairly, for if plaintiff performed no service, there could have been no ratification or recognition—there being nothing to ratify or recognize.
   By the Court.—Freedman, J.

Plaintiff’s claim to compensation rests upon his appointment by the board of supervisors, his recognition as such appointee by the judges of the court, and the rendition of services in pursuance thereof. The answer of the defendants, as interposed, contained two distinct defenses pleaded separately, The first was to the effect that the supervisors had no power to appoint, and the second put in issue the rendition of the services. They were not connected by any averment.

On plaintiff’s demurrer to the first defense it was held at special term (50 How. Pr..91), upon the authority of Brennan v. Mayor, &c. (62 N. Y. 365), that the naked plea of want of authority in the supervisors was, in the absence of any denial of the alleged adoption and ratification of the appointment by the court, insufficient in law to constitute a defense, but leave was granted to the defendants to amend their answer on payment of costs.

Of this privilege they did not see fit to avail themselves, nor did they appeal, and consequently the adjudication of the special term disposed of defendants’ first defense.

Under the former practice, when judgment was given for the plaintiff upon his demurrer to a plea, the defendant was bound in all cases in which the judgment given was not a final one, but merely a respondeas ouster, to plead anew, or his default in not pleading could be entered; and though the nature and office of the demurrer have been essentially changed under the new system introduced by the Code, yet the effect of an adjudication such as has been made in this case, is very much the same as it was before. The defense which has been disposed of by the proceedings on the demurrer is no longer available.

Moreover it appears that the allegation of plaintiff’s amended complaint that the several judges of the court recognized and employed the plaintiff in and about said court as an attendant, is nowhere denied in the answer, and hence it must, under the requirement of section 168 of the Code, be taken as true for the purposes of the action.

It is therefore plain that the only issue to be determined on the trial related to the rendition of the services. On this point the testimony was sufficient to authorize the direction of a verdict. Defendant’s counsel did nob ask to have this question submitted to the jury. True, he asked to be allowed to go to the jury on the question of recognition. But that question, as already showed, was not in issue, and having made a request for a specific purpose, for which he had no right to make it, he cannot on appeal and on a mere exception resort to it for another and different purpose (Schroff v. Bauer, 33 N. Y. Superior Ct. 199, and cases there cited).

None of defendants’ exceptions being tenable, the exceptions should be overruled and judgment absolute ordered for plaintiff on the verdict, with costs.

Curtis, Ch. J., and Sanford, J., concurred.  