
    Laura McH. Janes, Respondent, v. James Saunders, Appellant.
    
      Upon demurrer to an answer, not denying the allegations of a complaint, but setting up■ new mafter, the allegations in each pleading must be taken to be true.— a defense setting up. an instrument, not connected with the title or claim of the plain■? tiff, is bad.. .
    
    Where an answer demurred to contains no denial of the allegations of the corns plaint, hut sets up new matter,, the court, in considering the demurrer,- will . treat the allegations in each pleading as true.
    Where the complaint in an action alleges, in substance; that, prior to the. commencement of the action, Charles A. Shank, being the owner of a debt against the defendant,' assigned it to Franklin H. Janes in payment for past work, labor,- services and material; that after notice of the assignment -the defendant agreed to pay the claim to Franklin H. Janes, who assigned the claim to the; plaintiff — an answer which, among other things, pleads an instrument of an; executory character made between Charles EL Shank and Franklin- H. Janes,j alleges that this instrument was -subsequently destroyed as between them and; that Shank notified the defendant not to -pay anything to Janes under the instrument, is subject to demurrer where there is no allegation that the instrument- in question related to the plaintiff’s title or was in- any manner connected with her claim.
    Appeal, by the defendant, James Saunders, from aft interlocutory judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 21st day ¡ of December, 1897, upon the decision of the court rendered after a; trial at the Albany Special Term, sustaining the plaintiff’s demurrer to the second -defense set up in the defendant’s answer;
    ' This action was commenced December 2, 1893. In. the com-; plaint it is alleged that heretofore Franklin H. Janes rendered work, labor and services aftd furnished' materials to Charles A* Shank at his request and upon his promise to pay- therefor the sum of $550; that Shank, in payment of such obligation and for a good and sufficient consideration, heretofore'duly assigned and transferred to said Janes a claim and debt before then accrued and owing to Shank and against the defendant of the sum of $550; that the defendant thereafter, upon due notice of said assignment, accepted and agreed to pay the same and did pay to said Janes on account thereof the sum of $40.29 ; that thereafter said Janes, for a good and sufficient consideration, duly assigned to the plaintiff the said claim of $509.71, and the plaintiff now is the owner thereof and no part thereof has .been paid.
    The answer contains a general denial. Then, second, for a further and separate defense, it is alleged “that on or about the 17th day of May, 1893, one Charles A. Shank executed and delivered to Franklin H. Janes a certain instrument whereby said Shank promised and agreed to pay to the said Janes the sum of five hundred and fifty dollars ($550), if the sum of twenty-two hundred dollars ($2,200) should be paid to said Shank under an agreement between Charles A. Shank, James Saunders, this defendant, William Saunders and Herman Harder, bearing date the 17th day of May, 1893, and that the said assignment was executed and.delivered in consideration of the agreement of the said Franklin H. Janes to sell and assign and convey to the said Shank one-tenth interest in certain letters patent, in which letters patent the said Janes then claimed to own a one-fifth interest; that the said assignment by the said Shank was drawn by the said Janes immediately upon reaching a verbal agreement with said Shank for the sale by said Janes to: said Shank of the said interest in the said letters patent, and that the same was executed and delivered by the said Shank to the said Janes upon his agreement to prepare, execute and deliver as soon as said Janes could procure the proper form of assignment, an instrument transferring to said Shank the said interest in, the said letters patent; that said Shank thereafter requested said Janes to prepare and deliver the said assignment as promised, but that the said Janes failed and neglected so to do, and thereafter the said Janes informed the said Shank that he had concluded to retain his entire interest in said letters patent, whereupon the said Shank demanded the instrument of assignment which he had executed and delivered to the
    
      said Janes on the 17th day of May, 1893, as hereinbefore alleged ; that said Janes thereupon informed said Shank that he had destroyed the paper in question ; that said Janes thereafter, and on or about the 25th day of September, 1893, informed this defendant that he had a claim for $550 against money due Charles A. Shank from said defendant, under .the agreement dated May 17, 1893; that defendant thereafter informed the said Shank of the claim made by the said Janes, whereupon the said Shank notified this defendant not to pay auy moneys to the said Janes under said assignment, and that said, assignment, as. defendant is informed and believes, is wholly without consideration, fraudulent and void.”
    The plaintiff demurred to the second defense on the ground that it is insufficient in law upon the face thereof.
    
      Louis W. Pratt, for the appellant.
    
      G. H. Mallory, for the respondent.
   Merwin, J.:

The claim of the defendant is, that the paragraph of the- answer demurred to contains a statement of new matter constituting a defense to the action. The argument seems to be that, if the facts alleged in the second defense are true, the plaintiff is not the owner of, or has not the title to, the claim or debt sued on.

When ¡the answer demurred to contains' no denial of the allegaitions of the complaint, but sets up new matter, the court, in considering the demurrer, will treat the' allegations in each pleading as true. (Long v. Mayor, etc., 81 N. Y. 427; ’ Wiley v. Village of Rouse's Point, 86.Hun, 495.)

We, therefore, must assume, that, at some - date before the commencement of the action, Shank being the owner of a debt against defendant for $550, assigned it to F. H. Janes in payment of a debt he owed to Janes for work, 'labor and services and materials furnished.

The defense demurred to. .relates to an instrument dated May 17, 1893, between Shank and F. H. Janes, of an executory character, and we may assume that it is, in effect, alleged that that instrument was subsequently canceled as ’between Shank and F. H. Janes. There is, however, no allegation that the- instrument of May 17, 1893, is a part of plaintiff’s title, or has anything to do with the claim she sues on. It is entirely different in its character from the assignment which she alleges from Shank to F. H. Janes, .and we have, I think, no right to assume that they refer to the same .transaction in the absence of appropriate allegation to that effect. (Dechert v. Municipal Electric Light Co., 84 Hun, 575.)

It may be that if the assignment from Shank to F. H. Janes, through which the plaintiff claims title, was, before the assignment to plaintiff, in effect abrogated or nullified so that no title passed to plaintiff, the defendant could defend on that line. That question, however, is not here.

All of the allegations of fact in the answer may be true, and still . the absolute transfer, made by Shank to F. H. Janes in payment of a debt then existing from Shank to Janes as alleged in the complaint, may be still in full force and effect.

It follows that the demurrer was properly sustained.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to amend upon payment of costs of demurrer and of appeal.  