It was a mistake for the learned judge at Special Term to regard the pleading served by the defendant as both an answer and a demurrer. The clause therein, “ that the complaint does not state facts sufficient to constitute a cause of action,” though a ground of demurrer, may or may not be a demurrer, according to the connection in which it is used with other matters. When appearing with denials and with affirmative defenses in an answer, it is no more than a notice, quite unnecessary to be sure, that at the trial the defendant ydll move for a dismissal of the complaint on that ground.
There are some decisions at Special Term of this court, pronounced at quite an -early day under the Code of Procedure (Spellman v. Weider, 5 How. Pr., 5; Howard v. Michigan So. R. R. Co., Id., 206), and also in the Common Pleas (Slack v. Heath, 4 E. D. Smith, 95), which seem to support the decision, but they cannot be deemed to be more than the statement of the now perfectly well recognized principle of pleading under the Code; that the same cause of action cannot be both demurred and answered unto in the same pleading. In this case, however, the clause does not profess to be a demurrer, but professes to be an answer only; it has none of the formal parts of a demurrer, but only, a statement of a cause for which a demurrer might have been interposed.
The order should be reversed, with costs.
Davis, P. J., concurred. *412Daniels, J.:My construction of the pleading is that it was in substance and effect both a demurrer and an answer, and for that reason the order was right directing the defendant to elect upon which he would stand. I therefore disagree with the conclusion of Mr. Justice Macomber, and think the order should be affirmed.
Order reversed, with costs.