
    SUPREME COURT.
    Henry O. Bernard agt. Henry Morrison.
    
      Pleading — Answer—Demurrer—Defendant may not answer and demur to same cause of action —May he compelled, to elect whether to answer or demur.
    
    Where a paper served as an answer is clearly an answer and demurrer, the defendant may be compelled to elect whether he will abide by his answer or demurrer.
    
      Special Term, October, 1882.
    Motion to compel defendant to elect whether to answer or demur to the complaint.
    
      E. J. Myers, for plaintiff for the motion.
    
      John Graham, for defendant.
   Potter, J.

This is a motion to compel this defendant to elect whether he will abide by his answer or demurrer. The paper served as an answer to the amended complaint is clearly an answer and demurrer. It is in the words of subdivision 8, section 488. Where there is but one cause of action the defendant may answer or demur, but he may not answer and demur to the same (Sec. 487 and 492).

The remedy to compel an election in such case is proper (Sec. 492 Code, cmd the numerous cases in the references in Bliss' Code wnder sec. 492).

There is no occasion or propriety to pass upon the various objections made to defendant’s answer for want of certainty, &c., if defendant elects to stand on his answer, for it may be that he will elect to abide by his demurrer, and in that event his answer will disappear from the case.

Motion to compel election granted, -with ten dollars costs of motion.  