The amended complaint herein sets forth two causes of action, of which the first only concerns us here, the second being admitted by the defendant’s amended answer.
The first cause of action alleges that, between December 31, 1896, and April 19, 1897, the plaintiff performed certain work, labor and services for a Hew Jersey corporation, bearing the same name as the defendant herein, which work, labor and services were of the reasonable value and agreed price of $115; that thereafter, and on or about May 13, 1899, all the liabilities of said Hew Jersey corporation, including said liability for $115 then owing to the plaintiff for said work, labor and services, were assumed and agreed to be paid by the defendant in this action in consideration of the transfer to it by said Hew Jersey corporation of all its assets, and that the plaintiff shortly afterward was informed of the assumption of said liability by the defendant and agreed and consented thereto, and that no part of said sum of , $115 has been paid.
The second defense, contained in the defendant’s amended answer, without denying any of the allegations of the amended complaint, alleges that said cause of action did not accrue within six years before the commencement of this action.
To this defense the plaintiff demurred upon the ground that it was insufficient in law upon the face thereof.
The action was commenced on December 24, 1903, as appears from the statement preceding the appeal papers.
The demurrer was evidently sustained upon the theory that, although the answer, besides the defense demurred to, contains denials of the allegations of the complaint, the defense must be considered as admitting the allegations of the complaint for the reason that such denials are not reiterated or re-embodied in said defense, and, therefore, form no part thereof.
In the case of the Staten Island Midland R. R. Co. v. Hinchliffe, 170 N. Y. 473, a demurrer to a defense setting up the Statute of Limitations was sustained.
The interlocutory judgment appealed from should be affirmed, with costs, but with leave to defendant to amend, if
Truax and Scott, JJ., concur.
Interlocutory judgment affirmed, with costs, with leave to defendant to amend, if so advised, upon payment of costs.