This demurrer to an answer containing a denial only, has been interposed upon the .authority of Hopkins agt. Everett (6 How. Pr., R. 159), where Justice Barculo held that a demurrer will lie against a denial in an answer as well as to new matter. He held tjiat the word same in section 153, refers to the word answer, and not to new matter. I have been unable to agree with the learned justice in this construction of § 153. This section is in the chapter relating to “ the reply,” and it provides that when the answer contains new matter, &c. the plaintiff may reply to such new matter denying, &c.; and he may allege new matter not inconsistent, &c., constituting a defence to such new matter in the answer; or he may demur to the same for insufficiency, &c., and he may demur to one or more of several defences and set off set up in the answer, and reply to the residue. The word same, as here used, relates to the kind of answer previously mentioned in the section, viz: “answer containing new matter.” It seems to me that this is the obvious construction, and that the plaintiff was not permitted to reply or demur unless the answer contained new matter by way of defence, &c. This section was amended in 1852, but not so as to affect the present question. The province of a demurrer is to admit the affirmative allegations well pleaded. The answer may contain a denial of any material allegation in the complaint, controverted by the defendant (§ 149). All material allegations of the complaint not denied are for the purposes of the action taken as true {Code, § 168).
If a demurrer, answer or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court either in or out of court for judgment thereon, and judgment may be given accordingly (§247). The remedy is pointed out in this section when the matter, unanswered in the complaint, is sufficient to sustain the action; in other words, "when the matter denied is not material, and the denial forms only an immaterial issue (see 5 How. Pr. R. 321). If the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the. court may require the pleading to be made definite and certain (§160).
In the present case, the plaintiff, if he deemed the answer fri*11volous, should have applied for judgment pursuant to §247, and perhaps the answer might have been stricken out under § 152.
This demurrer is not authorized by th§ Code. What judgment can be given upon it, and what effect will a judgment upon it have? After the decision of a demurrer the court may allow the party to plead over upon such terms as may be just (§ 172). Issues are of two kinds; of law and of fact (§248). An issue of law must be tried by the court unless referred (§252); and judgment is to be entered thereon (§ 278), unless the party is permitted to plead over (§ 172).
In the present case the demurrer is not well pleaded, but what judgment shall be given? The defendant should have moved to strike it out as unauthorized and therefore irregular, and I shall direct it to be stricken out. I express no opinion upon the sufficiency of the complaint, supposing the matter denied, viz: the owning and holding of the note by the plaintiff at the commencement of the suit, to be stricken out. It is alleged in the complaint that Clifton then and there endorsed the said promissory note; and the same was afterwards, and before the same became due and payable, delivered to the plaintiff. If it had been alleged that Clifton endorsed the note to the plaintiff, or endorsed and delivered the note to the plaintiff, I think there would have been no doubt about the complaint’s showing the action to be in “ the name of the real party in interest,” and the allegation of ownership and holding might have been treated as surplussage. The demurrer is set aside.