
    Edward F. Fay, Plaintiff, v. Anton Hauerwas, Defendant.
    (Supreme Court, Albany Special Term,
    February, 1899.)
    Pleading — Hew matter must be separated from denials — numbering and separating defenses.
    As a demurrer will not lie to a denial, a defendant cannot join with denials new matter alleged as a defense, for such a course would nullify the right of the plaintiff to demur, under section 494 of the Code of Civil Procedure, to a defense of new matter as insufficient in law on its face. ■ (
    The Code requirement that defenses must be separately stated and numbered is not satisfied by simply numbering the separate paragraphs of the answer.
    Motion by plaintiff that defendant, in his answer to a complaint in an action for libel, be compelled to separately state and number a defense of justification (paragraphs marked “ Second ” and “ Third ” of the answer), and defenses of denials (paragraphs “ First ” and “ Fourth ”), and that the words “ that plaintiff was brought to trial on said charges, and on the trial said charges were sustained and plaintiff was expelled from said society and has not appealed from said decision,” be stricken from the defense of privileged communication as irrelevant.
    Harold D. Alexander, for motion.
    Sidney A. Hungerford, opposed.
   Chester, J.

A demurrer will not lie to either a specific or general denial, and if a defendant is allowed in the same defense to join denials with new matter alleged as a defense he can by that course nullify the provisions of section 494 of the Code of Civil Procedure, which allows the plaintiff to demur to a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law on the face thereof. The defendant should be required, therefore, to separate new matter from denials.

He should also separately state and number his defenses as required by section 507 of the Code of Civil Procedure. I do not think this requirement is complied with by simply numbering the separate paragraphs of the answer.

I think, also, that the allegation mentioned in the order to show cause with respect to the trial and expulsion of the plaintiff from the society referred to in the answer, is irrelevant as the answer now stands and should he stricken out.

The motion to the extent above indicated is granted, with $10 costs, with leave to the defendant to amend his answer generally within twenty days after service of notice of entry of order, upon the payment of such costs.

Ordered accordingly.  