
    Henry C. Wintringham, Respondent, v. Frederick C. Whitney, Appellant.
    
      Demurrer — waiver óf defect of form in a demurrer to a counterclaim — counterclaim, disconnected by denials from the subject of the action, unavailable to the defendant when the denials are part of the counterclaim.
    
    A demurrer to a defense, which consists in part of a general denial, cannot he sustained, but a demurrer may be taken to a counterclaim containing denials, the effect of which is to negative the existence of any relation between the defendant and the plaintiff, thus showing that the cause of action relied upon as a counterclaim cannot have arisen out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, and cannot have been connected with the subject of the action.
    Ordinarily denials are no part of a counterclaim, but a pleader who has chosen to incorporate them into a counterclaim cannot object to their being so considered.
    The complaint in an action, among other things, alleged that the plaintiff was a yacht and boat builder doing business in Brooklyn; that the defendant owned a sloop yacht; that between certain days at the request of the defendant the plaintiff performed certain work and furnished certain materials for the yacht, the reasonable value of which was a certain sum which had been demanded but had not been paid.
    The answer denied that the defendant had any knowledge or information sufficient to form a belief as to whether the plaintiff was a yacht and boat builder as stated, and then denied each and every other allegation of the first cause of action, and by way of counterclaim alleged, in substance, that the plaintiff agreed to take charge of the yacht and to take good care of it, but conducted himself so negligently and carelessly in respect to the vessel that she was damaged to the extent of 8500, and in this connection alleged that the counterclaim existed at the time of the commencement of the action, and that it arose out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, and was connected with the subject of the action, and demanded an affirmative judgment.
    The plaintiff demurred to the counterclaim on the ground that the counterclaim was insufficient in law upon its face.
    
      Held, that the demurrer was properly sustained;
    That the demurrer was defective in not specifying the objections to the counterclaim, as required by section 495 of the Code of Civil Procedure, providing that where a defendant demands an affirmative judgment upon a counterclaim he shall distinctly specify one or more of the objections mentioned in such section, but, as no objection to the form of the demurrer appeared to have been taken in the court below, the appellate court would disregard this irregularity;
    That as the effect of the denial contained in the counterclaim was to deny any ownership of the yacht by the defendant, or any interest in it, the counterclaim was not available to him;
    That in the face of such denials the defendant was not assisted by the allegation in the answer that the counterclaim existed at the time of the commencement of the action, arose out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, and was connected with the subject of the action.
    Appeal by the defendant, Frederick 0. Whitney, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of May, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term sustaining the plaintiff’s demurrer to the counterclaim interposed to the first cause of action set out in the complaint.
    
      Irving M. Dittenhoefer, for the appellant.
    
      B. Burnham Moffat, for the respondent.
   WILLARD BARTLETT, J.:

For a first cause of action the complaint in this ease alleged that the plaintiff was a yacht and boat builder, doing business in the city of Brooklyn; that the defendant was the owner of the sloop yacht White Wvngs ; that between the 25th day of June and the 30th day of August, 1890, the plaintiff, at the request of the defendant, performed certain work, furnished certain materials and laid out sundry sums of money upon the said yacht, of which an account was duly rendered to the defendant, and that the reasonable value of such services and materials, together with the money expended, was $309.49, no part of which sum had yet been paid, although duly-demanded.

The defendant in his answer alleged that he had no knowledge or information sufficient to form a behalf as to whether the plaintiff was a yacht and boat builder, doing business in the city of Brooklyn, and, therefore, he denied that allegation. He also denied positively each and every other allegation set out hi the complaint as constituting the first cause of action.

For a further and separate answer and defense to the first alleged cause of action, and by way of counterclaim, after reiterating, realleging and reasserting the denials already mentioned, the defendant alleged as follows:

That the plaintiff was at the times hereinafter mentioned, and at the times mentioned and referred to in the complaint, a yacht and boat builder, and also engaged in the business of taking charge of yachts for hire at his shipyard in the city of Brooklyn; that the said plaintiff in connection with and as part of the arrangement or contract claimed to have been made by him for the performance of certain work, labor and services, and the furnishing of certain materials in and upon the yacht White Wings, as alleged in the complaint, agreed, among other things, to take charge of said yacht White Wings at his shipyard, or dock adjacent thereto, at the foot of Fifty-fifth street in the city of Brooklyn, atan agreed compensation, and to take extraordinary and good care of the said yacht during the continuance of the said bailment; that the plaintiff so negligently and carelessly conducted himself with respect to the said yacht, and so grossly violated his said contract in reference to the care of the 'same, that the said yacht was greatly damaged by having her starboard bow stove in, and her forward timbers loosened and strained, and various other damage done, so that the said yacht became unfit for use and unseaworthy, and sustained damages in the sum of $500.00 ; that the said counterclaim and cause of action existed at the time of the commencement of this action, and the said cause of action arose out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, and is connected with the subject of the action.”

To the counterclaim thus pleaded the plaintiff demurred, on the ground that the same was insufficient in law upon the face thereof. The court below rendered a decision sustaining the demurrer, and from the interlocutory judgment entered thereon the defendant has appealed to this court.

The first point made by the appellant is that the demurrer is ■defective, because it merely states that the counterclaim is insufficient in law upon its face, and does not specify the objections to the counterclaim as required by section 495 of the Code of Civil" Procedure.

That section provides that the plaintiff may demur to a counterclaim upon which the defendant demands an affirmative judgment where one or more of five several objections, which are specified in the section, appear on the face of the counterclaim. Section 496 requires a demurrer taken under the previous section to distinctly •specify the objections to the counterclaim, and provides that otherwise the demurrer may be disregarded. There is no doubt that •strict practice would have required the plaintiff herein to distinctly •specify one or more of the objections mentioned in section 495, inasmuch as the counterclaim to which he demurred was one upon which the defendant demanded an affirmative judgment, and, therefore, fell within the purview of the section. The demurrer, however, was evidently drawn under section 494 of the Code of Civil Procedure, which relates to a counterclaim upon which no affirmative judgment is demanded. That section provides that the plaintiff may demur to a counterclaim on a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law upon the face thereof. A demurrer under that section, ór upon that ground, is practically the same thing as a demurrer under section 495, specifying the objection that the counterclaim does not state facts sufficient to constitute a cause of action.. That the court and counsel regarded it in this light may be inferred from the fact that no objection to the form of the demurrer is disclosed by the record. The case appears to have been argued and decided below on the assumption that the demurrer was sufficient in form, and in the absence of objection it was properly so regarded.

We are also satisfied that judgment was properly rendered against the defendant on the demurrer. The counterclaim begins by adopting certain denials, the effect of which is to totally disconnect the defendant from any of the transactions which are set out in the complaint as constituting the first cause of action. It then proceeds to aver, in substance, that the 'plaintiff agreed to take charge of the yacht White Wings at his shipyard in the city of Brooklyn, at an agreed compensation and to take good and extraordinary care of the said yacht, but conducted himself so negligently and carelessly in respect to the vessel that she was damaged to the extent of $500. It is impossible to perceive how these averments, if true, can possibly affect the defendant or give him any claim or cause of action against the plaintiff; for as a part of the very same counterclaim he has denied any ownership of the yacht in question, and there is not anything in his pleading to indicate that he had any interest whatever in the vessel.

The counterclaim is not aided at all by the allegation in the last clause, that it existed at the time of the commencement of the action and arose out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim and was connected with the subject of the action. No effect can be given to these statements, as allegations of fact, in view of the previous denials disconnecting the defendant from the yacht and from the plaintiff’s claim by reason of his work upon it.

In the case of Flechter v. Jones (64 Hun, 274), the General Term of the first department held that a defense which contained a general denial was not demurrable; and the appellant cites that decision in support of the proposition that a demurrer never lies to a pleading which contains denials of the complaint. We think this proposition is too broad to be an accurate statement of the law. A demurrer to a defense which consists in part of a general denial cannot be sustained; but there is no reason why a demurrer may not be well taken to a counterclaim containing denials, the effect of which is to negative the existence of any relation between the defendant and the plaintiff and thus show that the cause of action relied upon as a counterclaim could not have arisen out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, and could not have been connected with the subject of the suit. Ordinarily, it is true, denials are no part of a counterclaim (Foley v. Mercantile Nat. Bank, 24 Civ. Proc. Rep. 249), but the pleader who has chosen to incorporate them in a counterclaim cannot successfully object to their being so considered. The interlocutory judgment should be affirmed, with costs.

All concurred, except Cullen, J., not sitting.

' Judgment affirmed, with costs.  