The record brings up for review two appeals: One, from an interlocutory judgment sustaining a demurrer to matter pleaded in the answer in mitigation of damages only, and the other, from an order denying the defendant’s motion to compel the plaintiff to accept a proposed amended answer.
As to the first appeal, we are of the opinion that the demurrer should have been overruled. The matter demurred to was pleaded in mitigation of damages and was, therefore, not the subject of a demurrer. Under section 494 of the Code of Civil Procedure only matter pleaded by way of counterclaim or defense, in an answer, can be demurred to. The order sustaining the demurrer will be overruled and the interlocutory judgment vacated. Costs of the appeal to appellant.
As to the second appeal, we agree with the order made. The defendant’s time to serve his proposed amended answer had clearly expired. The order should be affirmed, with costs to the respondent.
Hascall, J., concurs.
Order affirmed, with costs.