APPEAL by the plaintiff, The Mills Power Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 28th day of October, 1910, upon the decision of the court rendered at the commencement of the trial at the Fulton Trial Term, with notice of an intention to bring up for review an interlocutory judgment in favor of the defendant entered on the 7th day of October 1910, overruling the plaintiff's demurrer to part of the answer.
M. H. Nellis, for the appellant.
Hugo Kohlmann and A. Henry Mosle, for the respondent.
The defendant by its answer set up a separate and distinct defense. The plaintiff demurred to this defense on the ground that the facts stated were insufficient in law to constitute a defense. The issue of law thus joined came on for trial and the court rendered an interlocutory judgment overruling the demurrer. The plaintiff did not withdraw its demurrer or ask to do so, but proceeded to trial of the action with the demurrer still standing. The trial court held that inasmuch as the demurrer had not been withdrawn and the court had held the answer a complete one to plaintiff's cause of action, he could do nothing else than dismiss the complaint, which he did. In this he was entirely correct. The separate defense went to the entire cause of action set forth in plaintiff's complaint and by not
withdrawing its demurrer thereto the plaintiff admitted all the facts set forth therein. ( National Contracting Co. v. Hudson R. W. P. Co., 110 A.D. 133.) The effect of the overruling of the demurrer and thus adjudging the defense to be a good one was not changed by the statement of the learned trial court in his decision that the court could not determine whether the defense was good or bad without a knowledge of the circumstances surrounding the giving of the deed and the granting of the easement relied upon as a defense.
When a demurrer is interposed to a pleading an issue of law is presented and it must be decided either by overruling or sustaining the demurrer. A pleading demurred to is either good or bad as it stands.
The case of National Contracting Co. v. Hudson R. W. P. Co. (170 N.Y. 439; 192 id. 209) is not authority to the contrary. On the first appeal in that case the demurrer to the separate defense was held to have been improperly sustained. On the trial of the case, however, the facts developed showed that the defense although good on its face was not effectual and could not be invoked by the defendant. It was urged upon the court on the last appeal that it having once said the defense was good it must stand by that decision and call it good notwithstanding the facts showed it unavailable to the defendant. This contention was of course repudiated. The court explained that although the defense was good on its face it was not good in view of the facts developed. It often happens that pleadings good on their face are insufficient in the light of proven facts.
In the present case, however, the plaintiff has appealed from the final judgment dismissing its complaint, and has brought up for review the interlocutory judgment overruling its demurrer. We are thus called upon to decide whether the demurrer to the separate defense was properly overruled.
The court, although differing as to the practice, is unanimous in the opinion that the defense is not a good one. The defense not being good the demurrer to it should have been sustained. This, therefore, calls for a reversal of the interlocutory judgment and with it falls the final judgment which was founded upon it.
The final and interlocutory judgments should be reversed, without costs, and the demurrer sustained, ...