Kager v. Brenneman
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Elizabeth Brenneman, from an interlocutory judgment in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the first and second separate defenses set up in the said defendant’s amended answer.
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Appeal by the defendant, Elizabeth Brenneman, from an interlocutory judgment in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1898, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the first and second separate defenses set up in the said defendant’s amended answer. The action is brought to obtain an accounting for, and for the sale of, property in which it is alleged that money improperly taken from an estate was invested. The defendant, Elizabeth…
1Opinion of the Court
O’Brien, J.:
It will be noted that the plaintiff treats the paragraphs of the amended answer separately by demurring to each of them as though they had been interposed as separate and distinct defenses, and they are severally arraigned as “insufficient in law upon the face thereof.” Unless the construction the plaintiff thus places upon the answer is *454correct, the demurrer is bad in form, for it has been repeatedly held that a demurrer will not lie to separate parts of a defense, but that for the purpose of determining its sufficiency the defense it to be construed in its entirety. The…
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