Upon demurrer ibis a general rule that the court will consider the whole record and give judgment against the party who committed the first error in pleading. (Wymam v. Mitchell, 1 Cow., 316; Griswold v. Nat. Ins. Co., 3 id., 96; Utica Ins. Co. v. Scott, 8 id., 709.) This rule is subject to this limitation that when a defendant to' whose pleading a demurrer has been interposed, has pleaded a plea such as the general issue going to the whole declaration_or to a part of it, he cannot be allowed to go back to the declaration upon a demurrer to another plea or pleading, upon the principle that he cannot demur and plead to the same count. (Wheeler v. Curtis, 11 Wend., 654.) The defendant by answer has admitted that the copy certificate of incorporation was filed duly in New York county, and that the report called for by section 12 of chapter 40 of Laws of 1848, has not been filed in that county when by law it should have been. It is too late, therefore, to review the allegations in that regard stated in the complaint. So also as to the second cause of action. .The allegation is that the plaintiff recovered a judgment for costs against the corporation. It does not appear what the action was for, whether for a tort or upon a contract, but the defendant has taken issue upon it and he cannot both plead and demur. The People v. Booth (32 N. Y., 397) was a demurrer to an answer for insufficiency. It was held that the complaint could be attacked. That was within the rule. An entirely-ibad answer is good upon demurrer where there is an entirely bad complaint. Upon the demurrer itself it was properly overruled. The defendant was a *449trustee of a mining corporation incorporated under the general law. (Chap. 40, Laws of 1848.) In case of failure to make and file.the report and publish it as required by the law, all the trustees jointly and severally are made liable for all the debts of the company then existing and which shall be contracted before this report shall be made. (Sec. 12.)
The defendant has answered, in addition to the admission made and to the general denial, that he was a creditor of the company to a large amount. It is not like the case of a stockholder sued for an amount equal to his stock. If he pays an amount to any creditor of the company equal to his stock he is free. (Garrison v. Howe, 17 N. Y., 458.) Or if he is himself a creditor to an amount equal to his stock he cannot be called upon to respond to another creditor for his debt. In the present case the trustee is liable for all the debts, and he cannot defend because he paid any sum short of the entire indebtedness of the company.
The order overruling the demurrer to the seventh section of the eomplaint, paragraphs seven to ten, should be affirmed, with costs to abide the event of the action.
Dykman and Pratt, JJ., concurred.Order sustaining demurrer to part of defendauts answer affirmed, with costs to abide event.