#### Martha Boll, Plaintiff, *v.*The New York and Harlem Railroad Co. et al., Defendants.

(Supreme Court, New York Special Term,

November, 1900.)

Action, in equity, to restrain continuing trespasses — Demurrer, for insufficiency in substance, to a defense that action did not accrue within ten years.

Where a plaintiff sues a railroad corporation, in equity, to restrain continuing trespasses upon her real estate which have existed for ten years, and then demurs, for insufficiency in substance, to a defense alleging that the cause of action did not accrue within ten years immediately preceding the commencement of the action, the demurrer is bad as it revokes the allegations of the complaint in that behalf, admits that the cause of action did not accrue within ten years, and therefore admits that the trespasses have ended.

Upon a demurrer for insufficiency, judgment must be rendered against the party first in fault of pleading.

Action to enjoin the defendants’ alleged continuing trespass to real property. Demurrer to a separate defense for alleged insufficiency in substance.

L. M. Berkeley, for plaintiff.

Oharles O. Paulding, for defendants.

Bischoff, J.

The complaint is framed for all the purposes of an action to enjoin the defendants’ alleged trespass to real property, and it is apparent therefrom that the trespass is, and for the ten years immediately preceding the commencement of the action was,. of a continuing character.

The defense, among others, is that the cause of action did not accrue within ten years last preceding the commencement of the action.

Ooncededly, this defense is sufficient in. form, and the only contention upon behalf of the plaintiff is that, since the complaint *43shows the trespass complained of to he a continuing one, the defense must fail as one without support in law. Galway v. Metropolitan El. R. Co., 128 N. Y. 132.

It is apparent that the position of the plaintiff’s counsel is predicated of the implied admission of the facts alleged in the complaint, consequent upon the pleading of an affirmative defense, which is unaided and properly unaccompanied by denials. But the demurrer to the defense, for insufficiency, likewise involves an admission of the facts therein alleged, and only a question with regard to the legal effect of the facts pleaded is thereby • presented.

For the purposes of the present inquiry, therefore, the complaint, as the earlier pleading, wherever it is in conflict with the later admission, must be taken as revoked. Obviously, to hold otherwise would mean to accord to the plaintiff, at least for present purposes, the right to assume and urge two inconsistent positions at one and the same time. A case somewhat analogous to this is Spores v. Boggs, 6 Oreg. 122, where the complaint was in replevin, the answer title in a third person, and a denial by reply. It was held that the plaintiff was not entitled to judgment on the pleadings, by reason of the defendant’s disclaimer of ownership, because if the plaintiff relied upon the admission he should not have denied it. So, in the ease at bar, the plaintiff, by her demurrer, has, in effect, denied the admission resulting from the defense demurred to, and the defense, therefore, could not well be tested as proceeding upon admitted facts such as would support the legal proposition arising upon the facts proven in the Galway case.

■The true result of this issue of law, however, is not to depend upon the, sufficiency of the separate defense, for the actual effect of the demurrer, by admitting the facts thus pleaded, is to disclose not a defense to an existing case, but a defect in the case itself, which, renders the defense, as such, of but second importance. The action, being in equity to restrain a trespass, obviously cannot be maintained except upon the theory that the trespass actually exists and will, inferemtially, continue, and- equally obvious is the necessity that the complaint shall aver facts consistent with this theory.

Taking the complaint as revoked to the extent of the admission, by the plaintiff’s demurrer, of the facts stated in the separate defense, the case stands disclosed as one wherein the asserted trespass is at an end, and in accordance with the familiar rule *44which calls for the rendering of judgment, upon a demurrer for insufficiency, against the party first in fault of pleading, this demurrer must he overruled.

Demurrer overruled, with costs.