
    SUPREME COURT.
    Mead, Guardian, agt. Florence.
    Where an answer is merely defensive,—that is, where it asks no affirmative relief, a demurrer to it will not lie. (Code, 1852.)
    
      New-York Special Term,
    
      January, 1854.
    Demurrer to answer.—This is an action against Florence as surety of Boudinot on an administration bond.
    Boudinot was ordered by the surrogate to pay over certain moneys, and failing to do So, the bond was directed to be assigned to the plaintiff to be put in suit.
    
      In his answer, Florence seeks to call in question the orders of the surrogate—and to this part of the defence the plaintiff demurs.
    
      -for plaintiff.
    
    
      -for defendant.
    
   Roosevelt, Justice.

Both parties, it appears to me, are under a misapprehension as to the proper practice. They seem to have Overlooked the important amendment made in the Code in 1852, rendering previous decisions, in this particular, inapplicable.

Questions on an answer, unless it contain a set-off or some other -counter-claim on the part of the defendant, cannot now be raised by demurrer.

Where an answer is merely defensive, in other words where it asks no affirmative relief, the issue, without further pleading in the shape of reply, demurrer, rebutter, rejoinder, surrebutter, &c., is considered sufficiently joined for the purpose of trial, and the deficiencies, if any, are to be made up by proof.

The plaintiff’s demurrer, therefore, as a pleading, must be stricken out.

It may be well, however, in view of the points raised by the defendant’s counsel, to observe that by the 159th section of the Code, pleadings are required to be liberally construed, with a view not to form,but to “substantial justice between the partiesand that by the 161st section of the same Code, it is provided that, in stating a judgment or other determination of a court of special jurisdiction, (such as the surrogate’s,) it shall be sufficient to aver that it was “ duly given or made.”

Unless the parties, after these intimations, wish to amend or to present testimony, I shall consider the cause as having been brought to trial on the pleadings as they stand, (without the demurrer,) and shall make a decision accordingly.  