The plaintiff demurs to the defendant’s counter-claim under section 494, and the fifth subdivision of section 495 of the Code. I do not think that the objections are well taken, for the matter pleaded is sufficient to constitute a cause of action. Upon the argument of the demurrer the principal ground of objection urged was that the cause of action disclosed by the counter-claim did not arise out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, and was not connected with the subject of the action. But no such objection to the pleading was raised by the. plaintiff’s demurrer. It is a distinct ground of demurrer under the Code, that the counter-claim does not disclose a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action (Sec. 495, subd. 4; sec. 501, subd. 1). And section 496 provides that the demurrer must specify the objections to the counter-claim, otherwise it may be disregarded. As the objections jaised by the plaintiff to the counter-claim are very technical, he must be held strictly to the letter of the law to prevail in his contention. In this he has failed.
The matter pleaded in the third defense is insufficient in statement to constitute an answer to the action, and in so far *267as it is concerned the demurrer is sustained. But that defense becomes a part of the counter-claim which latter adopts it. The demurrer to the counter-claim is overruled, but as to the defense it is upheld. The plaintiff is however at liberty to withdraw his demurrer to the counter-claim and to reply to the same, and the defendant may amend his third defense.
As neither party has wholly succeeded, neither is entitled to costs.