By the original Code, no demurrer was permitted to an answer or reply. The plaintiff was authorized to reply, when the answer contained new matter, any new matter not inconsistent with the complaint, in avoidance of the answer. (Code of 1848, § 131.) By the amendments of 1849, a demurrer for insufficiency was authorized to an answer containing new matter; and it was provided that if a reply of the plaintiff to any defence, set up by the answer of the defendant, was insufficient, the defendant might demur thereto and should state the grounds thereof. (§ 155,Code of 1849.) The pleadings in this case were under the Code of 1849. The defendant was authorized to demur if the reply to any defence set up in the answer was insufficient. The plaintiff could only reply "new matter not inconsistent *Page 89 with the complaint, in avoidance of the answer." (Code of 1849, § 153.) Suppose the reply contained new matter inconsistent with the complaint, but which was in avoidance of the answer, constituting a complete answer to the new matter stated in the answer, what then was the defendant's remedy? Could he demur to the reply? Such a reply would undoubtedly be a departure from the complaint. Departure in pleading is defined to be, when a party quits or departs from the case or defence which he has first made and has recourse to another. (1 Ch. Pl., 644; Co. Lit., 304,a; 20 J.R., 160.) Prior to the Code a demurrer would lie for a departure in pleading; but is a demurrer authorized by the Code for such fault in pleading? This depends upon the construction that shall be given to the word "insufficient," as used in § 155 of the Code of 1849. This term is found in equity pleading and practice. An answer was said to be insufficient when it did not contain a full discovery as to the facts stated in the bill; and the complainant could except to the answer for insufficiency. He could not so except unless the answer was required to be upon oath. As used in the Code, I suppose it has reference to the matter stated in the replication, and whether the facts there stated constitute a good answer to the facts stated in the answer. If such is the meaning of the term as used in the Code, it is obvious, I think, that the replication in the present case was not bad for insufficiency. It contained matter which entirely avoided the defence set up in the answer. It showed that White, the plaintiff, was the very receiver referred to in the answer, in whom the cause of action was vested. The point in the answer is, that a receiver had been appointed, and that the title of the note, and of course the cause of action, was vested in him; and the reply admitting all this, says the plaintiff, White, was appointed receiver and is the very receiver in whom the defendant alleges the title of the note is, and that he prosecutes the action as such receiver and in no other *Page 90 character. If these facts thus replied are true, they are sufficient to obviate the objection made in the answer. I am of the opinion that the Code did not authorize the demurrer in this case. The defendant had, however, another remedy; and that was a motion to set aside or strike out the reply upon the ground that it was not authorized by the Code. It alleged new matter, "inconsistent with the complaint." It is proper to remark that since the Code, parties must find their authority for pleading in the Code; and if the authority is not found there for any pleading put in, and it is not a case where a demurrer is authorized, the remedy is by motion to strike out. It is an irregularity to put in pleadings not authorized by the Code. All the cases in which a demurrer may be interposed are clearly specified. In the present case the defendant, if he thought the replication insufficient, had a right by demurrer to raise that question, stating "the grounds thereof," that is, wherein it was insufficient. All the grounds stated in the demurrer, relate to departure from the summons or complaint. It is then added that the reply is in other respects defective, insufficient and informal; but how insufficient is not stated. The learned judge, delivering the opinion of the supreme court, says that the broad ground is afforded to the defendant to demur to the reply whenever it is insufficient, without pointing out on what particular grounds the reply shall be deemed insufficient. In this the learned judge errs. The Code requires that the defendant shall state the grounds. (§ 155, Code 1849.) As no grounds of demurrer were stated, showing wherein the reply was insufficient, the plaintiff had the right to require the demurrer to be made more definite; or perhaps he could have moved to strike it out, upon the ground that it did not conform to the requirements of the Code.
It may be well to examine the complaint and answer. I think the complaint states a cause of action in favor of Andrew White, and that it is not sufficient as a complaint. *Page 91 showing a cause of action in favor of White in his character as receiver. The addition to his name in the title of the cause, "receiver of the Canal Bank of Albany," is a mere description of the person. If he claimed in his character of receiver, he should have inserted the proper averments in the body of the complaint, to show his right to maintain the suit in that character and his title to the note as receiver. (Beach v. King, 17 Wend., 197; 4 Den., 80.) The defendant could not demur to the complaint, as it stated facts constituting a cause of action in favor of White individually. But was there any necessity of his pleading new matter? I think not. It was only necessary for him to put in issue the plaintiff's title to the note, treating the complaint as alleging a cause of action in favor of White, not in the character of receiver. The issue upon the trial, then, would have been whether White was the owner and holder of the note; and upon this issue he must have failed, unless permitted to amend his complaint so as to show that he was receiver, and held the note in that character. The court has power over applications to amend, and will take care that the defendant's rights are not prejudiced by surprise or otherwise.
In my opinion there was not only no necessity for the pleading of the new matter, but it was impertinent and irrelevant. It contained matter simply showing that another person was the holder of the note and had a cause of action upon it. This certainly was irrelevant, because the plaintiff must always show a title in himself, a right to the thing demanded, and a cause of action in him; and if he fails it is entirely immaterial whether any other person has the cause of action mentioned in the complaint or not; neither the plaintiff or defendant has anything to do with that question. True, if the plaintiff upon the trial should show a prima facie title in himself, the defendant, to rebut this, might show that the title or cause of action was in some other person; but all this would be evidence upon the issue *Page 92 of title or ownership in, or holding by the plaintiff. The plaintiff could have moved to strike out this new matter in the answer; or, when admonished by it that his complaint was not adapted to the case as it actually existed, he could have amended. If his action was in favor of White simply in his individual capacity, then he should have moved to strike out the new matter in the answer as irrelevant; if in favor of White in his character of receiver, then he should have amended, and the whole answer would have fallen. The plaintiff had the right in any view to have the new matter stricken out.
I am somewhat embarrassed touching the judgment that the court should give upon these singular pleadings. There has been a departure throughout from the rules of pleading as prescribed by the Code. The parties, instead of adopting the proper remedies, have continued their pleadings until they have got out of the pale of the Code, waiving, at different stages in the pleadings, their rights to the simple remedies given by the Code.
I think the judgment of the supreme court should be reversed, and the plaintiff should, if so advised, be permitted to amend his complaint; if he do not amend, then that he be permitted to move to strike out the new matter in the answer; if he does neither, then that the defendant be allowed to move to strike out the reply upon the ground that it is inconsistent with the complaint. Neither party should have costs. If neither party avails himself of the permissions here given, then the judgment should be reversed upon the ground that the demurrer, for insufficiency, is not well taken, and there should be judgment for the plaintiff upon the demurrer.
GARDINER, C.J., JOHNSON, HAND, CRIPPEN and DEAN, Js., concurred in the opinion delivered by DENIO, J., and in giving the judgment therein stated to be proper.
Judgment accordingly. *Page 93