This is a suit in equity to enjoin the defendants from continuing a combination in restraint of trade designed to control the retail book business by establishing and maintaining the prices at which copyrighted books published after May, 1901, should be sold at retail and enforcing the rules of the association by refusing to sell books, whether copyrighted or not, to persons failing to observe the same, in violation of the Anti-Monopoly Law of the State of New York. (See Laws of 1899, chap. 690.) Subsequent to the decision of the Court of Appeals (177 N. Y. 473), holding that the complaint stated a good cause of action as to the non-copyrighted books, but that a combination was not unlawful as to copyrighted books without discriminating, as I think they should, between books of which the defendants are the owners of copyrights and those of which they are not the owners, the defendants modified their agreement by confining it to copyrighted books. They thereupon obtained leave of the court and served an amended answer setting up this fact and that since thus modifying the agreement they had not undertaken to control the free sale of non-copyrighted books as a separate defense to the action without pleading the facts either as a partial defense or in mitigation. The plaintiffs demurred to this separate defense as insufficient, in law. The demurrer was overruled and the majority of the court favor the affirmance of the interlocutory judgment. I think it should be reversed. The facts pleaded as a separate defense in the amended answer, if established, will not necessarily deprive the plaintiffs of injunctive relief or require the dismissal of the complaint. (Van Allen v. N. Y. E. R. R. Co., 144 N. Y. 174, 179; Thomas v. Schumacher, 17 App. Div. 441; affd., 163 N. Y. 554.) In addition to their right to recover damages in this action, I am of opinion that the plaintiffs will be entitled to injunctive relief. Surely they should not be turned out of court merely because the defendants have agreed among themselves, since the commencement of the action, that they will not further violate the law or the rights of the plaintiffs which, down to that time, according to the decisions of this court and of the Court of Appeals, they were violating. They should be perpetually enjoined from doing those acts which are a violation of the plaintiffs’ rights and of the law, to *282the end that they may not again violate them and compel the plaintiffs to bring another action for their protection. It is quite clear that no distinction was intended by the provisions of the Code of Civil Procedure between a suit in equity and an action at law with reference to the requirement that a defense which is not a complete defense to the action must be expressly pleaded as a partial defense, or to the sufficiency on demurrer of a defense as pleaded. (Code Civ. Proc. §§ 507, 508. See Coyle v. Ward, 167 N. Y. 240, 243; Ivy Courts Realty Co. v. Morton, 73 App. Div. 335; Bernascheff v. Roeth, 34 Misc. Rep. 588; Gabay v. Doane, 66 App. Div. 507; 77 id. 413.) Even under the chancery practice a plea to the entire bill was bad if it was not an answer to the whole. (Story Eq. PI. [10th ed.] § 693; Noe v. Noe, 32 N. J. Eq. 469.) This separate answer manifestly is not a complete defense to the action and will not necessarily require the dismissal of the courplaint even if the facts are established. I, think, therefore, that the facts are not well pleaded and that they should have been pleaded as a partial defense.
For these reasons I vote for reversal.
Judgment affirmed, with costs, with leave to plaintiff to withdraw demurrer on payment of costs in this court and in the court below.