The interlocutory judgment adjudges that the court upon the papers cannot determine whether the answer constituted a defense or not; that all the facts and circumstances provable under the pleadings should be placed before the court to aid it in the construction of the deed, and it continued: “ The demurrer is, therefore, overruled, leaving the question as to whether or not a sufficient defense is set forth in the particular part of the answer demurred to to the trial court upon the trial of all the issues under the pleadings ; the costs on the trial of this issue of law to abide the event.” That was not an improper determination of the demurrer. (Straus v. American Publishers' Assn., 103 App. Div. 277; National Contracting Co. v. Hudson R. W. P. Co., 170 N. Y. 439; 192 id. 209.)
In the latter case the demurrer to an affirmative answer was sustained. The Court of Appeals (in 170 N. Y.) reversed the interlocutory judgment upon the ground that it was not clear from the parts of the contract alleged that the answer was bad. The case then went to trial upon the facts, and the referee considering that he was constrained by the interlocutory judgment to hold that the facts alleged in the answer constituted a defense, gave judgment for the defendant. The Court of Appeals (in 192 N. Y.) reversed the judgment, holding that the decision of the demurrer was simply a failure to find that the answer was insufficient, but did not establish its sufficiency, the court saying (at p. 220): “ It is obvious, from a careful reading of the whole opinion, that all the court intended to decide was that tested merely by the face of the pleadings, it could not be said as a matter of law that the defense pleaded was necessarily insufficient, but that that question should be left open till the trial of the action, when the clause pleaded would be interpreted in the light of the whole contract and of the conduct of the parties thereon.”
*894The interlocutory judgment, therefore, does not justify the final judgment which the court based upon it. The demurrer, if it still stands, only admits the issuable facts alleged in the answer, and most of the allegations of the answer are conclusions which are not admitted. The demurrer did not, therefore, admit the plaintiff out of court.
We need not consider whether or not the interlocutory judgment was a substantial withdrawal of the demurrer or the placing of the case before the court for trial upon the complaint and answer. The interlocutory judgment should, therefore, be affirmed and the final judgment reversed and a new trial ordered, with costs to the appellant to abide the event.
Betts, J., concurred.
Final and interlocutory judgments reversed, without costs, and demurrer sustained, with costs, with leave to defendant to amend its answer on payment of such costs within thirty days.