
    Michael H. Cashman, Resp’t, v. Hugh M. Reynolds et al., Appl’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 7, 1890.)
    
    Pleading—Amendment—Of demurrer by answer—Code Civ. Pro., § 542.
    A defendant cannot as a matter of right amend a demurrer by serving an answer. The court has no power to force such practice upon the plaintiff. And where on the last day to answer defendants serve a demurrer they cannot thereafter serve an answer as a substitute and amendment of the demurrer under § 542, Code Civ. Pro,
    Appeal from judgment of the supreme court, general term, first department, affirming an order of special term denying motion to compel plaintiff to accept service of an answer served as a substitute for a demurrer previously served, pending motion to overrule demurrer.
    
      Thaddeus D. Kenneson, for app’lts; Townsend Wandell, for resp’t.
    
      
       Affirming 31 N. Y. State Rep., 143.
    
   O’Brien, J.

The defendants in this case sought, as matter of

right, to amend a demurrer which raised an issue of law by the service of an answer which, if allowable, changed the issue into one of fact. The plaintiff refused, to receive the answer served as an amendment to a demurrer, and then the defendants invoked the powers of the court to compel him to do so. The court held that it had no power to force this practice upon the plaintiff, and the general term is of the same opinion.

As the order decided a question of power in the courts below, it is re viewable here. The amended complaint stated a cause of action against the defendants for the foreclosure of a mortgage, and on the last day that the defendants could plead to it they served a joint demurrer specifying as the defect appearing on the face of the complaint that causes of action had been improperly united. The plaintiff then gave notice of a motion for judgment, on the ground that the demurrer was frivolous, to be heard January 6, 1890. Before this motion could be heard, and on January 3, 1890, the defendants served a verified answer accompanied with a notice that the same was a substitute for and amendment of the demurrer, and that the defendants claimed the right to serve it pursuant to § 542 of the Code of Civil Procedure. Whereupon the plaintiff’s attorney returned it, specifying as the reasons that as an answer it was served too late, and that as an amendment to the demurrer the defendants had no right to serve it under § 542 of the Code. The defendant’s attorney then gave notice of a motion that the court by order compel the plaintiff’s attorney to receive the answer as properly served in the case.. The result of this motion has already been stated.

We have examined the elaborate brief submitted by the defendant’s counsel in support of this appeal, calling our attention to the ancient practice in regard to amendments of pleadings, the usages of parliamentary bodies as to amendments generally, and the more recent, and it may be added, somewhat conflicting decisions of the courts in the first and second judicial departments in regard to this question. But we are satisfied that the practice which we are asked to sanction is not authorized by the statute, and that the order of the courts below was right.

When a complaint is served the defendant has twenty days in which to determine whether he has any defense to the cause of action therein stated, and if he has no defense, there is no occasion for any pleading on his part. If he has a defense and it arises out of facts not disclosed by the complaint, he can present these facts to the court by the service of an answer, or if the defense is upon the law, conceding all the facts stated in the complaint to be true, he can present that question to the court by the service of a demurrer. Both the answer and the demurrer are included in the general term pleadings, as used in the Code of Civil Procedure; but the office of the one is entirely different and distinct from the other. The answer raises an issue of fact to be determined by proofs upon a trial for that purpose, while the demurrer, conceding all the facts alleged in the complaint, raises an issue of law to be determined by the court, as the word itself implies. When a demurrer is served all other proceedings in the cause stop until the question of law raised thereon is decided.

The defendant may within the proper time present his defense, whether it arises upon the facts or the law, "by the use of either one or the other of these ¡headings, but he cannot, as matter of right, be entitled to serve both as a defense to the same cause of action.

By § 542 whichever form of pleading he concludes is necessary to present his defense may be amended by him, of course, within twenty days after its service has been made. If it be an answer the facts may be stated in another way or other facts added, or some of those first stated omitted entirely. If it be a demurrer its form may be changed or other additional grounds may be alleged. But an issue of law cannot be changed by an amendment, of conree, to an issue of fact, nor can the latter be by such process converted into an issue of law. When the party demurs he elects to admit the facts stated by his adversary and to rest his case upon the law arising upon these facts which he claims by the demurrer is in his favor. Hence the defendants in this case could have amended their demurrer within the twenty days by the service of another demurrer so changed as to meet the requirements of the case. But they could not amend a demurrer, presenting only a question of law, by serving an answer presenting a question of fact. Such a change of position by the pleader is not in any just' sense, and certainly not within the meaning of § 542, an amendment at all, but an entire change of the line of defense from the "law to the facts, and is not permitted by either the letter or the spirit of the Code of Civil Procedure.

When a party has made a mistake by serving a demurrer when he should have served an answer, he can be relieved from the consequences of his mistake by an application to the court, and in that way permitted to substitute an answer for a demurrer, or vice versa; but such a change cannot be mads, a matter of right. The court may allow it to be done when satisfied that justice requires it and upon such terms as it may consider just.

The cases of Wise v. Gessner, 47 Hun, 306; 14 N. Y. State Rep., 268, and Smith v. Laird, 44 Hun, 530; 9 N. Y. State Rep., 376, were correctly decided.

The order appealed from should be affirmed, with costs.

All concur.  