
    (86 Hun, 495.)
    WILEY v. VILLAGE OF ROUSE’S POINT.
    (Supreme Court, General Term, Third Department.
    May 14, 1895.)
    1. Pleading—Demurrer to Separate Defenses.
    A demurrer to a separate answer brings up for consideration only the complaint, the answer demurred to, and the demurrer; and therefore the allegations of the complaint must be deemed admitted for the purposes . of the demurrer, where the answer demurred to contained no denials.
    2. Same—Answer—Denials.
    The complaint in an action against a village for personal injuries caused by the defective condition of a street alleged that plaintiff was free from contributory negligence. The answer did not deny any of the allegations of the complaint except so far as it alleged that if plaintiff fell on the street, and suffered any injury thereby, the same was caused solely by the contributory negligence of plaintiff. Held, that such answer denied the allegation that plaintiff was free from contributory negligence, and therefore was not subject to the objection that it did not show what facts defendant controverted.
    S. Same—Hypothetical Pleading.
    A pleading is not demurrable on the ground that it is hypothetical, but the remedy in such case is by motion.
    Appeal from special term, Clinton county.
    Action by Lucinda J. Wiley against the village of Rouse’s Point for personal injuries. The second paragraph of the answer was as follows: “Second. The defendant, for a further answer and defense, alleges that if the plaintiff fell upon the streets or sidewalks of the village of Rouse’s Point at the time mentioned in said complaint, and suffered .any injury or damage thereby, the same was caused solely by the contributory negligence of plaintiff.” To this •defense plaintiff interposed the following demurrer: “The plaintiff in this action demurs to the defense consisting of new matter set forth in paragraph second of defendant’s answer, on the ground that it is insufficient in law upon the face thereof.” The demurrer was overruled, and plaintiff appeals.
    Affirmed.
    Argued before PUTNAM, HERRICK, and STOVER, JJ,
    W. H. Dunn, for appellant.
    Egbert C. Everest, for respondent,
   PUTNAM, J.

On a demurrer to a separate answer the court has before it, and can only consider, the complaint, the answer demurred to, and the demurrer. Hence, although parts of the answer may contain denials, if there is none in the separate answer to which the demurrer is interposed, in the consideration of the case the allegations of the complaint must be deemed admitted. Douglass v. Insurance Co., 138 N. Y. 209-215, 33 N. E. 938; Valentine v. Lunt, 51 Hun, 544-547, 3 N. Y. Supp. 906; Boyd v. McDonald (Sup.) 12 N. Y. Supp. 356; Hammond v. Earle, 58 How. Pr. 426. In this case the second paragraph of defendant’s answer, to which the demurrer was interposed, contained no denial of the allegations of the complaint or either of them, except that the averment in such answer that the injury to the plaintiff, if any, was caused by her contributory negligence, may be regarded as a denial of the allegation in the complaint that the accident occurred without any fault, negligence, or carelessness on her part. The answer admits the plaintiff’s fall on the street or sidewalk of the village of Rouse’s Point, and the suffering, injury, and damage resulting therefrom, because it does not deny the allegations of the complaint in that regard. It admits all the allegations of the complaint except as to contributory negligence. We think, therefore, that the answer is not subject to the objection suggested by the appellant. The allegations therein that “if the plaintiff fell,” etc., does not deny, and hence admits, the averments in the complaint; Therefore plaintiff is mistaken in stating that she is unable to ascertain from defendant’s answer what facts in her complaint are controverted. All the facts stated in the complaint are clearly admitted, except the fact of the absence of contributory negligence. The defendant, not denying that plaintiff fell on one of the streets of Rouse’s Point and was injured, as alleged in the complaint, could, we think, properly use in his pleading the language to which plaintiff objects,—that “if the plaintiff fell,” etc., such fall was caused by her contributory negligence. Taylor v. Richards, 9 Bosw. 679; Ketcham v. Zerega, 1 E. D. Smith, 553.

It is not apparent how plaintiff is in any manner injured by such • an averment in the answer. If the allegation, however, should be deemed hypothetical and improper, the remedy of plaintiff was by motion, and not by demurrer. The pleading alleged a defense,— the contributory negligence of plaintiff,—and hence a demurrer thereto could not be sustained. The learned counsel for the appellant suggests that:

“If the defendant had been content to have alleged (upon information and belief or otherwise) that the negligence of plaintiff contributed to cause her injuries, then its answer would have been clear and concise, enabled all parties to have known what was really in issue in the case, and would not have been subject to the criticism of being hypothetical and uncertain.”

In fact, defendant has alleged in the answer in question just what the counsel thinks she should have alleged. By not denying, it is admitted that plaintiff was injured as alleged in the complaint, and it is plainly averred that such injury was caused by her contributory negligence. The answer in question was not necessarily interposed by the defendant. It was a proper and necessary allegation in the complaint that the injury to plaintiff was not caused by her negligence. On the trial plaintiff, as a part of her cause of action, will be compelled to show the absence of contributory negligence. Hence a general denial in the answer of defendant would have enabled it to show contributory negligence on the part of plaintiff, and it was not necessary for it to allege that fact by way of affirmative defense. But, although not compelled to do so, we think the defendant could properly, as a separate answer, allege such contributory negligence on the.part of the plaintiff, although such defense could be proved under a general denial contained in other parts of the answer. The judgment should be affirmed, with costs. All concur.  