#### Susanna Olivella, Plaintiff, *v.*The New York & Harlem R. R. Co. et al., Defendants.

(Supreme Court, New York Special Term,

April, 1900.)

1. Demurrer — Defense stating a conclusion of law *“*consists of new matter ”— Code Civ. Pro., § 494.

A separate defense, interposed in an action in equity, alleging only a pure conclusion of law, i. e. that the plaintiff has an adequate rem*204efly at law, “ consists of new matter ” within the meaning of section 494 of the Code of Civil Procedure and may properly be demurred to under that section upon the ground that it is insufficient in law upon the face thereof.

*2.*Equity — Continuous trespasses — Multiplicity of actions.

An abutting owner may sue in equity to restrain continuous trespasses to her easements caused by the operation of a railroad in front of her premises, as such a course avoids a multiplicity of actions at law to recover damages for each separate trespass.

Action in equity by an abutting owner to restrain a railroad’s continuous trespasses upon easements, and for damages.

A demurrer was interposed to the answer.

L. M. Berkeley, for plaintiff.

Ira A. Place, for defendants.

Gildebsleeve, J.

The plaintiff demurs to the fourth separate defense of the answer, which is as follows, viz.: “For a further fourth and separate defense, the defendants allege, upon information and belief, that for the pretended injuries or causes of action, alleged in the complaint, the plaintiff has a complete and adequate remedy at law, and that the plaintiff has no right to invoke the equitable interference of this court.” Thé plaintiff demurs to this defense “ on the ground that it is insufficient in law upon the face thereof.” The demurrer is based on section 494 of the Code of Civil Procedure,which is as follows,viz.: “The plaintiff may demur to a counterclaim or defense, consisting of new matter, contained in the answer, on the ground that it is insufficient in law, upon the face thereof.” The plaintiff’s claim is that a demurrer admits as true only such relevant facts as are well pleaded, and net a conclusion of law (see Masterson v. Townshend, 123 N. Y. 458); and that the defense in question avers no facts, but simply and purely a conclusion of law, and is, therefore, demurrable. See Hammond v. Earle, 58 How. Pr. 438. It is further urged by the plaintiff that the allegations of the complaint show that the cause of action is in point of fact properly an equitable one, inasmuch as the complaint alleges that the injuries complained of will be constant and continuous trespasses; and that, to prevent a multiplicity of suits, and to afford the plaintiff adequate relief, the equitable interfer*205ence of the court is necessary; and the complaint asks for a perpetual injunction restraining defendants from maintaining a structure, and from operating thereon trains of cars, in front of plaintiff’s premises, and for a judgment directing the removal of said structure, together with damages for the trespass committed hy defendants.

It is well settled that, although trespasses on real property, effected by an illegal structure thereon, are continuous in their nature, and give to the owner separate successive causes of action at law for damages, from time to time, as the injuries are perpetrated; still the owner may also resort to equity to prevent continuance of the trespass and a multiplicity of actions at law. See Pappenheim v. Metropolitan E. R. Co., 128 N. Y. 436; see also Golden v. Health Department, 21 App. Div. 420.

In opposition to the demurrer, the defendants urge that the defense in question does not consist of new matter, and, therefore, the demurrer is not warranted by section 494 of the Code, above quoted. This section, however, does not require that the defense should “ set up new facts,” but simply should “ consist of new matter.”

I am inclined to the opinion that the defense *does*“consist of new matter.” It sets up a conclusion of law, not an answer to any of the allegations of the complaint. The demurrer must be sustained, with costs.

Demurrer sustained, with costs.