(No. 17.) Special demurrer to complaint in an equitable action, specifying various defects wherein the pleading is alleged to be insufficient. SUPREME COURT. Frederick Farrand agt. Samuel H. Marshall. The defendant demurs to the plaintiff's amended complaint in this action, and specifies, for grounds of objection thereto, the causes following: First. That it does not state facts sufficient to constitute a cause of action. Second. That it appears from said amended complaint that the premises, on which the excavations, digging and the other acts complained of were and are being made and done, belong to the defendant. Third. That it is not alleged that the excavations and other acts complained of were or are done or prosecuted negligently, unskillfully, maliciously or without proper care. Fourth. That it appears from said amended complaint that at the time of the purchase by the plaintiff of his premises, that the defendant was, and had been prior thereto, engaged in making said excavations, and that the plaintiff had notice thereof. Fifth. That it appears from said amended complaint that the excavating, digging and other acts complained of, and from the doing of which it is sought to restrain the 1 To Complaint No. 15, Part II., ante, p. 90. Demurrer sustained at Special and General Term, Ferrand v. Marshall, 21 Barb., 409. defendant, were done and prosecuted on the premises of the defendant for a lawful purpose. Sixth. That it does not state facts sufficient to constitute a proper case for an order restraining the defendant, as prayed therein. Seventh. That several causes of action are improperly united. J. C. NEWKIRK, Defendant's Attorney. (No. 18.) Demurrer to one of several defences in an answer containing defensive matter only. SUPREME COURT. A. B. agt. C. D. The plaintiff demurs to the second defence set forth in the defendant's answer in this action, and for grounds of demurrer specifies the following: That the same does not constitute a defence to said action.1 That said defence, [here specify briefly the particular defects of the answer.] 1 Section 153 of the Code, as now amended, allows the plaintiff in all cases to demur to an answer, or one or more several defences, containing new matter, even though such new matter do not constitute a counter-claim, when such answer or defence does not state facts sufficient to constitute a defence. (Welch v. Hazelton, 14 How., 97.) The general form of demurrer, in the language of the Code, would, no doubt, be sufficient, but it is usual and proper to point out also the particular defects. (No. 19.) Special demurrer to defensive answer containing two separate defences, in an action brought by receiver of an insurance company on a premium note.1 SUPREME COURT. Justus White, receiver of the Union Insu rance Company Storm R. Haight. The plaintiff demurs to the defendant's answer, and to each defence therein stated, for insufficiency, for the reasons: First. As to the first defence: 1st. As to said first defence, the said answer contains no new matter constituting a defence. 2d. The said Company was duly organized, and had ample power to do business and issue policies. 3d. On the 8th July, 1851, an act passed the legislature of the State of New-York, entitled "An act," &c., &c., [stating it.] That act, by its recognition of the company at that time as a body corporate, was a waiver of any defects, and was a confirmation of the company as a valid existing corpora tion. 4th. That all the facts stated in the defendant's first defence are an insufficient answer to said complaint. Second. As to the second defence: 1st. That said answer, as to said second and last defence, contains no new matter constituting a defence. 1 See Complaint in this case, No. 16, Part III., and note, ante, p. 381. Demurrer sustained by Court of Appeals, December term, 1857; case not reported. 2d. That the defendant's note in action is subject to be assessed to pay the losses in the cash department, so called. 3d. That all the facts stated in the defendant's second and last defence, in his answer, are an insufficient answer to said complaint. HENRY R. MYGATT, Plaintiff's Attorney. (No. 20.) Demurrer to counter-claim, interposed in an action to recover rent.1 SUPERIOR COURT-CITY OF NEW-YORK. George D. Phelps Gottlieb Kiesele. The plaintiff demurs to the answer of the defendant in this action, and, for grounds of demurrer, specifies: That said answer does not constitute any counter-claim or defence to said action. That said answer shows no eviction of the said defendant, from said premises, by the plaintiff. That it sets forth no breach of the contract of hiring or lease, and no cause of action arising on contract or connected with the subject of the action. 1 To Answer No. 60, Part IV., ante, p. 642. The Code prescribes no rule by which to determine the sufficiency of an answer containing a counter-claim, except that it must state facts sufficient to constitute a good cause of action, in favor of the defendant and against the plaintiff, and that it be one of the several causes (No. 21.) Demurrer to a reply of set-off to a set-off in the answer.1 SUPREME COURT. Thomas White Daniel Lucey. The defendant demurs to the plaintiff's reply in this action, and, for ground of demurrer, specifies: That said reply is insufficient.2 of action defined by § 150 of the Code; held, therefore, that an answer, containing a counter-claim, is not demurrable, on the ground that it is not an answer to the whole of the plaintiff's cause of action. (Allen v. Haskins, 5 Duer, 332.) The following is the demurrer on which this decision is rendered: "The plaintiff demurs to the defendant's answer in this cause, for insufficiency, and states the following grounds of demurrer: "First. That the said answer is pleaded in bar of the whole of the plaintiff's complaint, but alleges facts in bar of only part of the cause of action set forth in that complaint. "Second. That the said answer does not deny any material allegation of the complaint, nor does it set up new matter in bar thereof. "Third. That the said answer does not state facts sufficient to constitute a defence or deny the plaintiff's cause of action." The demurrer is to Reply No. 3, ante, p. 663. See, also, answer in same case, No. 59, Part IV., ante, p. 642. 2 By section 155 of the Code, "If a reply of the plaintiff to any defence set up by the answer of the defendant be insufficient, the defendant may demur thereto and shall state the grounds thereof." It was held at General Term, in White, Receiver, &c., v. Joy (11 How., 36), that the demurrer to the reply may be generally for insufficiency, without pointing out on what particular grounds the reply shall be deemed insufficient. The judgment of the Supreme Court in that case was reversed by the Court of Appeals (3 Kernan, 83), but it does not appear from the prevailing opinion, delivered by DENIO, J., whether |