Opinion
February, 1901.
Henry A. Robinson (John T. Little, of counsel), for appellant.
Jacob Friedman, for respondent.
The answer contained first a general denial, and then proceeded to allege two separate defenses, substantially as follows: First, that whatever damages were sustained by the plaintiff were due to his own negligence, and not the result of any negligence of the defendant; and, second, that such injuries were sustained by reason of the negligence of a third person unknown to defendant.
Under the general denial contained in the answer, the defendant could have proven all that it expected to prove under the subsequent separate defenses, and clearly, therefore, their appearance in the answer was wholly unnecessary, if, indeed, not wholly unwarranted; but, whether the plaintiff's remedy was by demurrer or by motion to strike out, is the question before us. We think we are called upon to decide this question upon the authority of the very recent case of Durst v. Brooklyn Heights R.R. Co., 33 Misc. 124; 67 N.Y.S. 227, wherein it is held that the remedy is by demurrer. While this is not a decision of the Appellate Division, the reasoning is so clear to our minds, and the authorities cited in the opinion so fully sustain the decision of Mr. Justice Gaynor, that, while it remains unreversed, it is controlling upon us. We are satisfied with the following conclusions reached in the Durst case, viz.: "If an alleged defence contains no new matter, it is obviously, insufficient, and therefore demurrable, and that is the case with this alleged, defence."
The interlocutory judgment appealed from should be affirmed, with costs.
FITZSIMONS, Ch. J., concurs.
Interlocutory judgment affirmed, with costs.