McBride v. American Surety Co. 24 N.Y.S. 178, 70 Hun. 369

PARKER, J.

Plaintiff’s predecessor in administration was, by decree of the surrogate’s court, directed to pay to the plaintiff '1204.18, and to deliver to her all other property in her hands as administratrix. She failed to comply with the decree, and the ¿plaintiff, by this action, sought to recover the money adjudged to be in her hands, from the surety on her official bond, this defendant.' Subsequent to the granting of the decree, which lies at the foundation of this action, the surrogate’s court, on notice to plain*179tiff, so amended it as to direct the deposed administratrix or her surety, this defendant, to deposit said sum with the chamberlain of the city of New York, instead of paying it to the plaintiff, as was originally provided, and providing that upon such deposit the administratrix and her surety should be released from all liability on the bond. Thereafter, defendant answered the complaint, denying certain material allegations, alleging an amendment of the decree in the respects already briefly alluded to, averring a deposit with the city chamberlain, in compliance therewith, and demanding a dismissal of the complaint, with costs. At the time of the service of the answer, therefore, the only subject of controversy remaining was whether the plaintiff or the defendant should recover costs of the action. That controversy must necessarily have resulted in favor of the plaintiff, had her attorney declined to receive the answer on the ground that in it was alleged a defense which had arisen subsequent to the commencement of the action, thus putting the defendant to its motion for leave to serve what it described in its answer as “An Amended and Supplemental Pleading-.” On that motion the court could, and doubtless would, have imposed, as a condition of its service, the payment of plaintiff’s costs of thei action up to that time. Instead, the plaintiff pleaded, by way of demurrer, as follows: “The plaintiff in the above action demurs to the answer of the defendant therein upon the ground that the said answer does not set up a defense to the complaint.” The demurrer was therefore to the entire answer, which contained denials of material allegations in the complaint, as well as averments of new matter, and was unauthorized. Nichols v. Lumpkin, 52 N. Y. Super. Ct. 88. The Code authorizes a demurrer “to a counterclaim or a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law, npon the face thereof.” Code Civil Proc. § 494. And, had the plaintiff demurred specifically to the new matter, the question would have been presented whether it was sufficient, in law, to constitute an affirmative defense. As she did not, we need not inquire further. The interlocutory judgment should be affirmed. All concur.