#### Michael L. Rodkinson, Plaintiff, *v.*Joseph Gantz, Defendant.

(Supreme Court, New York Special Term,

February, 1899.)

Pleading — Where a demurrer is overruled, the defendant may plead, anew by answer.

After a demurrer to a complaint had been overruled and the defendant given leave to plead anew upon payment of costs, he served an answer and thereafter amended it within twenty days, as of course.

Held, that the defendant had a right to change his line of defense from a demurrer to an answer and to amend the latter, as of course, within twenty days of the service.

Motion by defendant that the amended answer stand as the answer in the ease. Pacts appear in the opinion.

Wilcox & Brodek, for motion.

Rudolph Marks, opposed.

Scott, J.

The defendant demurred to the complaint. His demurrer was overruled, with leave to plead anew on payment of ■costs. He paid the costs and served an answer. Within twenty days thereafter he served an amended answer, which was promptly returned by the plaintiff on the ground that it was “ not authorized by law, as section 542 of the Code of Oivil Procedure authorizes amendment of causes only in the regular order of pleading.” Defendant now moves that the amended answer stand as the answer in the case. The plaintiff misapprehends the scheme of pleading prescribed by the Code of Oivil Procedure. When a complaint has been served the defendant has open before him two lines of defense from which he must make a choice. He may demur, and thus raise only issues of law, or he may answer, and thus raise issues of fact. He cannot both answer and demur to the same ■cause of action, and having made his election he must stand by it ■unless relieved by the court, for even under the broad power of •amendment given by section 542 he cannot, as matter of right, substitute an answer for a demurrer, or a demurrer for an answer. Cashman v. Reynolds, 123 N. Y. 138. In the present case the defendant elected to present an issue of law, and served a demurrer. *269Upon this issue he was heaten, and the action was decided adversely to him. This would have been an end of the case had it not been for the exercise by the court of the power conferred by section 497, which provides that upon the decision of a demurrer the court may, in its discretion, allow the party in fault to plead anew, or amend upon such terms as are just. It is important to observe just what the court may permit to be done by a party who has elected to defend by means of a demurrer, and whose pleading has been overruled. He may “ plead anew; ” that is, he may go back to the beginning, and adopt that line of defense which involves tendering an issue of fact, and is evidenced by the service of an answer. Having obtained that permission, and complied with the terms prescribed as a condition, the defendant started along his second line of defense precisely as if he had selected it in the first instance, and with the same rights he would have had if his first pleading had been an answer. The demurrer was out of the case, and the position of the parties towards each other was as if no demurrer had ever been interposed. Wheelock v. Lee, 74 N. Y. 495. The defendant being in the position described, and having pleaded anew by serving an answer, was entitled to avail himself of the right conferred by section 542 of serving an amended answer within twenty days after the service of his original answer. His motion must, therefore, be granted, with $10 costs.

Motion granted, with $10 costs.