
    Augustus A. Gordon, Respondent, v. Albert H. Moore, Appellant.
    (Supreme Court, Appellate Term,
    May, 1908.)
    Pleading: Motions relating to pleadings: Motion to compel election — Between answer and demurrer; Motion to strike out matter from pleading — Subject matter — Matter constituting objections that must be raised by demurrer: Waiver of objections — Objections to complaint or declaration — Want of jurisdiction of defendant.
    Where a pleading assumes both to answer and to demur, a motion to elect is appropriate; but, where the pleading answers in part and demurs in part, the remedy is by motion to strike out.
    Where a defendant designates his pleading as an answer, it will not be treated as both an answer and a demurrer; but allegations, objectionable because they constitute grounds of demurrer only, will be regarded as unnecessary or surplusage.
    Where the lack of jurisdiction over the person of a defendant is not apparent upon the face of the complaint, an objection on that ground will be deemed waived unless pleaded in the answer (Code of Civ. Pro. §§ 498, 499).
    Appeal by defendant from an order of the City Court of the city of New York at Special Term requiring an election between certain defenses, etc.
    R. W. Keene, for appellant.
    J. E. Chandler, for respondent.
   Greenbaum, J.

The order appealed from compels the defendant to elect whether he will stand on the defenses designated in his answer I and II or on the defenses marked III, IV and V. Defenses I and II constituted a general denial and a plea of payment, respectively. So-called defenses III, IV and V, respectively, set up the lack of the court’s jurisdiction of the person of the defendant, and of the subject of the action and the failure of the complaint to state facts sufficient to constitute a cause of action.

The real ground of the motion, as urged by respondent and as upheld by the learned court below, was that the pleas numbered III, IV and V were in reality demurrers and, therefore, inconsistent with the defenses I ahd H, for the reason that, under our practice: “ The only pleading, on the part of the defendant, is either a demurrer or an answer.” Code Civ. Pro., § 487.

It is to be observed that defendant’s pleading does not assume both to answer and demur, nor is it one that answers in part and demurs in part. In the former case a motion to elect and, in the latter, to strike out, would be appropriate. Nichols N. Y. Pr., § 938, and cases there cited.

The precise question here presented has been passed upon in Barnard v. Morrison, 29 Hun, 410, and C'amp v. Bedell, 52 id. 63, adversely to respondent’s contention.

Defendant’s pleading, having been designated by him as an answer, is not to be treated as both an answer and demurrer, notwithstanding that some of the alleged defenses were grounds of demurrer only. The objectionable allegations will be regarded as unnecessary or surplusage, which, in the Gamp case, supra, the court intimated might be stricken out upon motion. It is, however, also stated in the same case that the allegation “ cannot by any possibility do' the plaintiff any harm. The plaintiff’s position is in no way changed because of the fact that the answer contains the needless allegation.”

The practice, as laid down by the appellate courts and which in recent years has been quite uniformly followed, is to grant motions to strike out irrelevant or redundant matter in a pleading only where it is evident that the moving party otherwise will be aggrieved. Stokes v. Star Co., 69 App. Div. 21; Howard v. Mobile Co. of America, 75 id. 23.

It may be noted, too, in the case at bar that the allegation of want of jurisdiction of the person would be deemed waived unless pleaded; and, as the question of jurisdiction on that ground is not apparent upon the face of the complaint, it is peculiarly well pleaded in the answer. Code Civ. Pro., §§ 498, 499; Seamans v. Barensten, 180 N. Y. 333, 336.

The order must be reversed, with ten dollars costs and disbursements to" appellant.

Gildersleeve and Giegerich, JJ., concur.

Order reversed, with ten dollars costs and disbursements to appellant.  