(b.) DEMURRER AND ANSWER, HOW FAR COMPATIBLE.

Under section 151 of the Code, forming part of the chapter on answer, it is provided that "the defendant may demur to one or more of several causes of action stated in the complaint, and answer the residue.”

It is obvious, from the terms of the section, that, where the plaintiff, in pursuance of the provisions of section 167, has separately stated several causes of action, the defendant may put in a demurrer to any one or more of such causes, and an answer to others; pursuing, of course, the same system of separating his own defences.

And even where two distinct causes of action arose under the same instrument, and were combined in one statement, it was held competent for the defendant himself to make the separation, and to put in a demurrer to such portions of the pleading as stated one of such causes, whilst answering such as related to the other. Clarkson vs. Mitchell, 3 E. D. Smith, 269.

And in the same case it was decided that both modes of defence might be combined in one and the same pleading, without losing their distinctive character. See also, Howard vs. Michigan Southern Railroad Company, 5 How., 206; 3 C. R., 213.

But, in adopting this course, the pleader must take care that the two modes of defence are not inconsistent. See, as to demurrer to reply, Burr vs. Wright, 9 How., 542.

Demurrer and answer are, however, wholly incapable of joinder, when taken to the complaint as a whole, or to the same cause of action. If attempted, the pleading will be bad, though not a nullity; the plaintiff's remedy is by motion to compel the defendant to elect between those forms of defence as inconsistent, and in default of election to strike out one of them. See Howard vs. Michigan Southern Railroad Company, supra; Spellman vs. Weider, 5 How., 5; Slocum vs. Wheeler, 4 How., 373; Cobb vs. Frazee, 4 How., 413; 3 C. R., 43; Clark vs. Van Deusen, 3 C. R., 219; Ingraham vs. Baldwin, 12 Barb., 9; affirmed, 5 Seld., 45; Struver vs. Ocean Insurance Company, 16 How., 422; Gassett vs. Crocker, 10 Abb., 133; Slack vs. Heath, infra; Munn vs. Barnum, 1 Abb., 281; 12 How., 563. This series of decisions overrules The People vs. Meyer, 2 C. R., 49, and Gilbert vs. Davies, 2 C. R., 50.

Nor in a case where demurrer pure will lie, can an objection apparent on the face of the complaint be taken by answer. If attempted, the pleading will be bad. Slack vs. Heath, 4 E. D. Smith, 95; 1 Abb., 331; Struver vs. Ocean Insurance Company, and Gassett vs. Crocker, supra; Zabriskie vs. Smith, 3 Kern., 322, and Dennison vs. Dennison, 9 How., 246.

The above provision was first inserted on the amendment of 1849.

Before its insertion, it had been held in Manchester vs. Storrs, 3 How., 410, that a demurrer could only be interposed to the entire complaint. This doctrine has, of course, ceased to be applicable.

§ 171. Omission to Demur.

The effect of such omission is defined by section 148, providing that

"If no such objection be taken, either by demurrer or answer, the defend⚫ant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action."

The question will, in the present section, be considered in its general aspect, as applicable to an omission to take the objections defined by section 144, without regard to the form in which such objection may be presented. Of those objections, Nos. 2, 3, 4 and 5 will be positively waived by such omission. Nos. 1 and 6 may, on the contrary, be taken at any time, and need not be raised in abatement at the outset. But not, it seems, after trial and judgment, on appeal from that judgment. See Mosselman vs. Caen, 34 Barb., 66; 21 How., 248.

The meaning of the section is thus defined in Zabriskie vs. Smith, 3 Kern., 322 (336). If the objection "be not taken by demurrer, where that mode is proper, or by answer in cases where that is the appropriate method, it is waived." See also Fosgate vs. Herkimer Manufacturing and Hydraulic Company, 2 Kern., 580; Winterson vs. Eighth Avenue Railroad Company, 2 Hilt., 389. As to the right of a defendant to claim that the complaint is defective on the hearing of a demurrer, to answer, being restricted to the ground of want of jurisdiction or insufficiency, vide People vs. Banker, 8 How., 258; Fry vs. Bennett, 1 C. R., (N. S.), 238 (256); 5 Sandf., 54; Rayner vs. Clark, 7 Barb., 581; 3 C. R., 230; Schwab vs. Furniss, 4 Sandf., 704; 1 C. R. (N. S.), 342.

See generally, as to the waiver of a plea in abatement by answering to the merits, Tripp vs. Riley, 15 Barb., 333; Freeman vs. Newton, 3 E. D. Smith, 246; Brown vs. Jones, 1 Hilt., 204; 3 Abb., 80; Lewin vs. Stewart, 10 How., 509. See, however, in the succeeding chapter, as to the possibility of joining defences of both natures in the same answer, when separately pleaded.

The following decisions carry out the principles of section 148, by decreeing the waiver of specific objections when not presented in proper season, either by demurrer when apparent on the face of the complaint, or when not so apparent by answer, stating the objection in connection with such matters of fact as may be necessary to establish its existence. As to the objection of the want of capacity to sue, see Hastings vs. VOL. II.-5

McKinley, 1 E. D. Smith, 273; Mosselman vs. Caen, 34 Barb., 66; 21 How., 248.

As to the objection of a defect or other misjoinder of parties, Leavitt vs. Fisher, 4 Duer, 1 (23); Loomis vs. Tift, 16 Barb., 541; Eldridge vs. Bell, 12 How., 547; King vs. Vanderbilt, 7 How., 385; Ingraham vs. Baldwin, 12 Barb., 9; affirmed, 5 Seld., 45; Bidwell vs. The Astor Mutual Insurance Company, 16 N. Y., 263 (266); Fosgate vs. Herkimer Manufacturing and Hydraulic Company, 2 Kern., 580 (584); Zabriskie vs. Smith, 3 Kern., 322 (336); Bates vs. James, 3 Duer, 45; Jackson vs. Whedon, 1 E. D. Smith, 141; 3 C. R., 186; Tallman vs. Franklin, 3 Duer, 395 (400).—(N. B. Not affected by reversal, 4 Kern., 584.) Baggot vs. Boulger, 2 Duer, 160; General Mutual Insurance Company vs. Benson, 5 Duer, 168; Bowdoin vs. Coleman, 6 Duer, 182; 3 Abb., 431; Purchase vs. Mattison, 6 Duer, 587; Lewis vs. Graham, 4 Abb., 106; Sheldon vs. Wood, 2 Bosw., 267; Van Deusen vs. Young, 29 Barb., 9; Abbe vs. Clark, 31 Barb., 238; Gasset vs. Crocker, 10 Abb., 133; Montgomery County Bank vs. Albany City Bank, 8 Barb., 396 (401); Savage vs. Corn Exchange Fire and Inland Navigation Insurance Company, 4 Bosw., 1 (15); Scranton vs. Farmers' and Mechanics' Bank of Rochester, 33 Barb., 527; Hawkins vs. Avery, 32 Barb., 551; Donnell vs. Walsh, 6 Bosw., 621. See also, as to the waiver of the defence of coverture, if not pleaded in abatement, Castree vs. Gavelle, 4 E. D. Smith, 425. But the objection of a total misnomer of the defendant is one of substance, and, where the party does not waive it by appearance, may be taken even after judgment. See Farnham vs. Hildreth, 32 Barb., 277.

This rule is, however, subject to this modification, i. e., that where it appears that a complete determination of the controversy cannot be had without the presence of other parties, the court has the power, and it is its duty, under section 122, to order them to be brought in, even although those before the court may have omitted to raise the objection in due season, and waived it, therefore, so far as they are concerned. See Shaver vs. Brainard, 29 Barb., 25; Leavitt vs. Fisher, 4 Duer, 1 (23); and Davis vs. The Mayor of New York, 2 Duer, 663 (665, 666).

Where too the objection as to defect or misjoinder of parties, is not formal in its nature, but goes directly to the merits, as affecting the rights of the plaintiff to maintain the action, it will fall under subdivision 6, and become one for want of sufficiency, and, as such, will not be waived. See Giraud vs. Beach, 3 E. D. Smith, 337; Higgins vs. Rockwell, 2 Duer, 650; Gould vs. Glass, 19 Barb., 179; Thurman vs. Wells, 18 Barb., 500 (518); Spencer vs. Wheelock, 11 L. O., 329; Mann vs. Marsh, 35 Barb., 68; 21 How., 372.

As to the waiver of an objection on the ground of multifariousness or

misjoinder of causes of action, being waived by an omission to take it in due season, see Youngs vs. Seeley, 12 How., 395; Colegrove vs. Harlem and New Haven Railroad Company, 6 Duer, 382 (402); Winterson vs. Eighth Avenue Railroad Company, 2 Hilt., 389; Wright vs. Storrs, 6 Bosw., 600.

That neither the objection on the ground of want of jurisdiction nor of insufficiency is waived by an omission to plead it, is clear from the terms of the section itself. It may be even sustainable after trial, and on appeal, where the defect is essential and fatal to the cause of action. Cole vs. Blunt, 2 Bosw., 116. But not so as a general rule. See Moseelman vs. Caen, 34 Barb., 66, above cited.

See, as to the right of a party to raise such an objection on the trial or on motion, notwithstanding an omission to demur, Montgomery County Bank vs. Albany City Bank, 3 Seld., 459 (464); Budd vs. Bingham, 18 Barb., 494; Burnham vs. De Bevoise, 8 How., 159.

An insufficiency of allegation will, however, be cured by verdict, and the objection cannot afterwards be raised. Brown vs. Harmon, 21 Barb., 508. So also a defect, otherwise impeachable, but supplied by the pleading of the adverse party, cannot be impeached. White vs. Joy, 3 Kern., 83 (86). And a technical defence, or the impeachment of an evident defect in the complaint, will be waived by an omission to raise it at the outset, or take it at the trial. Castree vs. Gavelle, 4 E. D. Smith, 425; Carley vs. Wilkins, 6 Barb., 557.

An objection to the jurisdiction, personal in its nature, is also capable of waiver, even by the act of appearance. See Mahaney vs. Penman, 4 Duer, 603; 1 Abb., 34.

Although an objection to sufficiency may be even tenable on appeal, yet a defendant omitting to raise it in the previous stages of the suit, cannot then take an affirmative judgment in his own favor; he can only obtain a reversal of that obtained by the plaintiff. Raynor vs. Clark, 7 Barb., 581 (584); 3 C. R., 230.

And, if he defers the objection to the trial, the extent to which it will be available will be comparatively limited; the question will then be. not whether the complaint is perfect, and embraces all necessary matters, but only whether there are facts enough set forth to show a cause of action. Ludington vs. Taft, 10 Barb., 447.

See likewise, as to a pleading being taken most strongly against the adverse party, who goes to trial, without availing himself of the right to take a preliminary objection, Wall vs. Buffalo Water Works Company, 18 N. Y, 119.

$172. Frivolous Demurrer.

In cases where a demurrer is taken on grounds which, on its face, are wholly untenable, the defendant incurs the risk, not merely of its being overruled on the argument, but also of its being stricken out as frivolous on motion on the part of the plaintiff for judgment under section 247; and, in such cases, on its becoming clearly apparent that such demurrer has been interposed in bad faith, and for the purpose of delay only, leave to answer over may very possibly be refused. It is therefore a proceeding attended with some risk, unless there exist some substantial objection, on which the preliminary decision of the court as to the plaintiff's right to recover may fairly be taken.

It is only, however, in gross cases, and where the demurrer is palpably groundless and untenable, that the courts will feel disposed to exercise their summary powers in this respect. Neefus vs. Kloppenburgh, 2 C. R., 76. To warrant an application of this nature "the case should be entirely clear, palpable on the statement of the facts, and requiring no argument to make it apparent." Rae vs. Washington Mutual Insurance Company, 6 How., 21; 1 C. R. (N. S.), 185. "The rule is that the court will not strike out a demurrer as frivolous, unless it clearly appear to be taken merely for the purpose of delay, or unless the grounds stated in it are clearly untenable. Its insufficiency, as a pleading, must be so apparent that the court can determine it on bare inspection without argument." Sixpenny Savings Bank vs. Sloan, 15 How., 543; 2 Abb., 414. See likewise Shearman vs. New York Central Mills, 1 Abb., 187 (190).

The fact that a demurrer is taken on slight grounds will not render it frivolous, if they are such that any argument can fairly be raised upon them. Niblo vs. Harrison, 7 Abb., 447; Accome vs. American Mineral Company, 11 How., 24. See also dictum and head-note in Bank of Wilmington vs. Barnes, 4 Abb., 226, though the actual decision was adverse. Nor will a demurrer be properly adjudged frivolous by one justice of the court, when founded upon the decision of another, whether that decision be correct or not. Lattimer vs. New York

Metallic Spring Company, 9 Abb., 207, note.

A demurrer to a form of complaint already decided to be sufficient, will, on the contrary, be clearly frivolous, and will be so adjudged upon motion. Phelps vs. Ferguson, 19 How., 143; 9 Abb., 206. See likewise actual decision in Bank of Wilmington vs. Barnes, above cited.

Inasmuch as a demurrer admits the facts stated in the complaint, it admits also the conclusions which clearly flow from them. And if, on the facts stated, the legal conclusion be unquestionable, a demurrer, seeking