
    John R. Drake, App’lt, v. Herbert L. Satterlee, Rec’r, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    1. Pleading—Demubber.
    Where the answer does not set up the facts as separate defenses, but denies plaintiff’s right to the fund in question and alleges that defendant as receiver is entitled thereto, a demurrer to “ each and every defense consisting of new matter in the answer and the counterclaim therein ” is too indefinite to present any question to the court under § 494 of the Code.
    2. Same—Counterclaim.
    Where a defendant who has been brought in as a claimant of the fund in question makes no affirmative claim against the plaintiff, but asks that the fund be awarded to him, this does not constitute a counter-claim within § 501.
    3. Same—Judgment on demurrer.
    The court on overruling a demurrer to an answer is not authorized to include in the judgment a provision granting leave to apply for an order making other persons parties defendant.
    Appeal from interlocutory judgment overruling demurrer to answer.
    
      Joseph A. Thompson, for app’lt; Henry W. Harden, for resp’t.
   Ingraham, J.

By the amendment to the complaint this action became an action in equity to determine the ownership of a fund in court, the plaintiff claiming it as assignee of one Sherman, and the defendant as receiver of said Sherman, plaintiff also alleging that the appointment of defendant was void, and defendant alleging that the assignment to plaintiff was void and made with intent' to hinder, delay and defraud creditors.

The answer does not set up the facts as separate defenses, but denies the right of plaintiff to the fund and alleges that defendant, as such receiver, is entitled to the fund. The plaintiff demurs to “ each and every defense consisting of new matter in said answer” and also to “ the counterclaim contained in said amended answer,” specifying several objections thereto.

The grounds upon which a plaintiff is allowed to demur to answer are specified in §§ 494 and 495 of the Code. By § 494 of the Code it is provided that a plaintiff may demur to a defense consisting of new matter contained in the answer on the ground that it is insufficient in law upon the face thereof.

The demurrer here interposed repeats the words used in this section without designating any specific defense which it is claimed is insufficient.

After an examination of the answer we are not at all sure that there is any “ defense consisting of new matter” therein contained.

. The complaint alleges the fact of defendant’s appointment as receiver; it alleges the making of the contract under which both parties claim, the payment of the money into court, and most of the answer consists of allegations in relation to facts alleged in the complaint.

It is possible that the allegations as to the order entered on the motions which are claimed by defendant to be res adjudicata upon the issues in this action could be treated as a defense consisting •of new matter, but it is not expressly pleaded as a separate defense, and is not separately numbered.

The plaintiff, if he had desired to have this question raised, ■could have applied to the court to compel defendant to make his answer more definite and certain, or to separately state and number his defenses, and could then have demurred to each specific •defense which “ was insufficient in law upon its face.”

We think that in the present state of the pleadings the demurrer is not sufficiently definite to present any question to the ■court for its determination.

It is true that in some cases a demurrer to each and every defense contained in the answer has been upheld as in effect a demurrer to each specific defense, Kennagh v. McGolgan, 21 St. Rep., 326, but in such cases the pleading demurred to in some way plainly indicated the defenses which the defendant relied on to defeat plaintiff’s cause of action, and the demurrer thus definitely specified the defenses which the plaintiff wished to challenge.

We agree therefore with the court below that the demurrer was too indefinite to present any question as to the defenses contained in the answer.

Plaintiff also demurs to the counterclaim set up in the answer upon several grounds, but one of which are authorized by the Code, § 495.

A demurrer to a counterclaim on the ground that there is a defect of parties is not allowed by the section.

The demurrer that the counterclaim does not state facts sufficient to constitute a cause of action cannot be sustained.

Plaintiff to recover must depend upon the validity of the assignment from Sherman. If that assignment is void as to the defendant he has a right to allege the facts to show that such assignment is void as an equitable defense, and so defeat plaintiff’s -cause of action. He has also a right to allege that such assignment being void, the fund belongs to him. This he does by showing that he has been duly appointed receiver of the property of the plaintiff’s assignor, to whom the money was under the contract payable, and as such representing Sherman’s creditors.

We do not think, however, the answer contained a counterclaim within § 501 of the Code

The defendant was made defendant as a claimant to a fund in court. He asks no affirmative relief as against the plaintiff. What he does ask is that the fund which is the subject of the controversy be awarded to him. If the plaintiff is not entitled to the fund, it can make no difference to him whether it is awarded to the defendant or not, and the right of the plaintiff to recover depends upon his ability to prove the allegations of the complaint which are denied by the answer. The facts upon which defendant relies to establish his right to the fund do not tend to diminish or defeat the plaintiff’s recovery.

We do not think, therefore, that the demurrer is sufficiently definite to raise any question as to the defenses set up in the answer, and as no counterclaim is alleged upon which defendant, demands an affirmative judgment, no question was presented by the demurrer.

The interlocutory judgment entered on the decision of the-court overruling the demurrer allowed the plaintiff to withdraw demurrer and reply to the amended answer, and then provides that in case plaintiff shall withdraw such demurrer that, the defendant shall have leave to apply to the court for an order making such other persons parties defendants as may be necessary for a full determination of the issues herein, and may amend his answer.

We think this provision of the interlocutory judgment unauthorized on the trial of the issue of law raised by the- demurrer; the decision must either sustain or overrule the demurrer, and by § 497 of the Code the court is given power in its discretion' to-allow the party in fault to plead anew or answer upon such terms, as are just.

Whether or not other persons should be made parties to the action should be determined upon an application to the court at. special term,' when, upon a presentation of the facts, the parties-could have an opportunity to be heard and the question determined.

The hearing on the demurrer was a trial of the issue of law raised by the pleadings, and it was only that issue of law that could there be determined.

We think, therefore, that the interlocutory judgment appealed from should be modified, by striking out all after the provision for final judgment, and as so modified affirmed, without coats in this court, with leave to the plaintiffs to withdraw the demurrer, on payment of the costs in the court below.

Van Brunt, P. J., and Daniels, J., concur.  