[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 434
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 435 The question certified by the learned Appellate Division to this court for determination is as follows: "Is the third separate and affirmative defense contained in the defendant's *Page 436 answer herein insufficient in law upon the face thereof to constitute a defense?"
We have recently held that it is not the duty of this court to answer a question certified to it that will admit of one answer under one set of circumstances and a different answer under another, or where it presents only an abstract proposition, no facts being disclosed by the record to show that it arose in the case. (Grannan v. Westchester Racing Association, 153 N.Y. 449. ) While we are confined to the question certified, it is our duty to examine the record not only to see that it actually arose, but also to see how it arose, so that we can decide it as it was presented to the courts below. In other words, we should ascertain all the facts that raise the question, so that it can be decided as an existing issue between the parties and the danger of passing upon merely abstract propositions may thus be avoided. The question, therefore, is not whether the facts alleged in the third division of the answer are insufficient to constitute a defense to a complaint that is admitted to set forth a good cause of action, but whether they constitute a defense to the cause of action purporting to be alleged in the complaint before us. The judgment of the court is thus invoked upon the law of the case as presented by the complaint and the third defense alleged in the answer. (Lewis v. Cook, 150 N.Y. 163, 165.)
The rule is that on demurrer to an answer for insufficiency the defendant may attack the complaint on the ground that it does not state facts sufficient to constitute a cause of action. (People v. Booth, 32 N.Y. 397; Village of Little Falls v. Cobb, 80 Hun, 20, 27; 6 Encyc. of Pl. Pr. 326.)
A demurrer searches the record for the first fault in pleading and reaches back to condemn the first pleading that is defective in substance, because he who does not so plead as to invite an issue cannot compel his adversary to so plead as to accept it. (Clark v. Poor, 73 Hun, 143; Williams v. Williams, 25 Abb. N.C. 217; Corning v. Roosevelt, Id. 220, and cases cited in note.) As "a bad answer is good enough for a bad complaint," it is necessary to examine the record to *Page 437 see whether the allegations of the complaint are sufficient to constitute a cause of action. The complaint contains two counts, and the defense in question is general so that it applies to either. Unless both counts are defective, the demurrer must be examined upon the merits, but if neither sets forth a cause of action, the sufficiency of the pleading demurred to cannot be considered. (Wheeler v. Conn. Mut. Life Ins. Co., 82 N.Y. 543,555; Boyle v. City of Brooklyn, 71 N.Y. 1.)
The Special Term assumed without discussion that the complaint states two causes of action, while the Appellate Division held that the first count was sufficient, but that the second was insufficient.
Upon the argument before us the sufficiency of the complaint was not discussed, doubtless upon the assumption that it was not involved in the question certified. In order to avoid the danger of doing injustice, we think that a reargument should be had, so that counsel may present their views upon that subject, and it is ordered accordingly.
GRAY, O'BRIEN, BARTLETT and MARTIN, JJ., concur; ANDREWS, Ch. J., and HAIGHT, J., not voting.
Reargument ordered.