#### STUART v. BLATCHLEY et al.

(Supreme Court, General Term, Fourth Department.

May 18, 1894.)

Pleading—Demurrer to Answer oe Codeeendant.

Defendant cannot demur to the answer of a codefendant, as there is no provision in the Code of Civil Procedure authorizing a demurrer in such ease.

Appeal from special term, Broome county.

Action by Frances E. Stuart against Ambrose Blatchley and others. From an interlocutory judgment overruling a demurrer to certain portions of the answer of defendants Silas P. Brown and another defendant, Nellie V. Watson and another appeal. Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Babcock, Sperry & Van Cleve, for appellants.

A. D. Wales, for respondent.

MERWIN, J.

This action is brought for the partition of two par-complaint it is alleged that the plaintiff, as the devisee of Ruth Ann Blatchley Marvin, is the owner of an undivided one-third interest in the first parcel and an undivided two-ninths interest in the second parcel. It is also alleged that Hortensius Blatchley, at the time of his death, in December, 1887, was the owner of an undivided one-third interest in the first parcel and an undivided five-ninths interest in the second parcel, and that the defendants Silas P. Brown and James E. Kent claim to own such interests by virtue of a deed from G-. Ambrose Blatchley, the sole heir at law of said Hortensius; and that the defendants Nellie V. Watson and Millie L. Watson also claim to be the owners of such interests as devisees under the will of said Hortensius, made on the 16th June, 1885. The defendants Nellie V. Watson and Millie L. Watson answered, admitting the interest of plaintiff as alleged in the complaint, and alleging that they, as devisees under the will of Hortensius Blatchley, were the owners of the interests which Hortensius held at the time of his death; that such will was dated on or about 16th June, 1885, and was duly made and executed by said Hortensius, and was in existence at the time of his death, and had never been revoked, but that, after his death, and before it was proved or recorded, it was lost or destroyed, without their knowledge or consent, and could not be found by them. A copy was annexed to the answer. They denied that the defendants Brown and Kent had any interest in the premises. Judgment was demanded that it be adjudged that the defendants Brown and Kent had no interest in the real estate of which Hortensius Blatchley died seised, but that the defendants Nellie V. Watson and Millie L. Watson were the owners of the same. *801The defendants Brown and Kent also answered, among other things denying the interest of plaintiff in the premises, denying that the defendants Watson had any interest therein, and alleging that Hortensias Blatchley died intestate, and that they, as grantees of his only heir at law, were the owners of a two-thirds interest in the first parcel and a seven-ninths interest in the second parcel. In the ninth subdivision of this answer, for further answer to the complaint and the allegations thereof relating to the alleged interest of the Watsons, and as a bar against said Watsons, it was alleged that on or about the 20th June, 1889, the said Kellie V. and Millie L. Watson, by their guardian ad litem, commenced an action in the supreme court to obtain a judgment decreeing that the will of Hortensius Blatchley, under which the said Watsons claim, be established as the last, will and testament of said Blatchley, as a will lost or destroyed subsequent to his death; that in that action the said Brown and Kent were made parties defendant, as well as the heir at law and administrator of said Blatchley; that Brown and Kent appeared and answered generally the allegations of the complaint; that the issues were duly referred to a referee to hear and determine, and were duly tried, and the referee found and decided that said will was revoked by said Blatchley in his lifetime, and was not in existence at his death, and that he died intestate, and that the defendants therein were entitled to judgment dismissing the complaint on the merits; that judgment was accordingly entered on 20th May, 1893, and a copy was attached. The answer of Brown and Kent in the present case demanded judgment, among-other things, that the defendants Watson be decreed to have no-interest in the premises. This answer was duly served on the Watsons and on the plaintiff, and the answer of the Watsons was duly served on Brown and Kent and on the plaintiff. Thereupon the defendants Wátson served a demurrer to the ninth defense or subdivision of the answer of Brown and Kent, the ground of demurrer being stated, “that the same is insufficient in law' upon the face thereof.” This was brought to a hearing at special term, and a decision made “that the demurrer will not lie by the demurrants Watson to the answer of their codefendants Brown and Kent;” that the defendants Brown and Kent “are entitled to an interlocutory judgment overruling said demurrer, and that the said defendants Watson are permitted to answer or reply under the rules and practice of this court.” Prom the interlocutory judgment entered thereon the present appeal is taken.

Was the special term- correct in holding that the demurrer would not lie? The claim of the respondent is that there is no law or authority which permits a demurrer in such a case. There seems to be no provision of the Code that authorizes it. By sections 488 and 492 a defendant is authorized to demur to the complaint, or to one or more separate causes of action stated therein; and he may demur to the reply (section 493), or to a separate traverse to or avoidance of a defense or counterclaim contained in the reply. The plaintiff may demur to a counterclaim or a defense consisting of *802new matter, contained in the answer. Section 495. These provisions do not reach the present case. Section 521 treats of the determination of the ultimate rights of two or more defendants as between themselves, but no provision is made that one defendant may demur to the answer of the other. The answer, which is demurred to in the present case, was served in pursuance of section 1548, which is as follows:

“The title or interest of the plaintiff in the property, as stated in the complaint, may he controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant, thus controverting the title or interest of a co-defendant, must comply with section five hundred and twenty-one of this act. The issues, joined as prescribed in this section, must be tried and determined in the action.”

The provision of section 521 there referred to required that a defendant who sought a determination between himself and a codefendant must demand it in his answer, and must, at least 20 days before the trial, serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be affected who have not appeared in the action. It will be observed that section 1543 states the method in which issues between codefendants in a partition case shall be joined, and that no demurrer is provided for. The fact that no time was provided for the service of the answer upon the codefendant except that it must be served 20 days before the trial would seem to indicate that no further pleading was deemed necessary or appropriate. The issues so joined were to be tried and determined as issues in the action. Hagerty v. Andrews, 94 N. Y. 198; Shannon v. Picked, 2 N. Y. St. Rep. 160. By section 140 of the Code of Procedure all the forms of pleading theretofore existing were .abolished, and thereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings should be determined, were those prescribed by that act. Under this, as said by Judge Gridley in DeWitt v. Swift, 3 How. Pr. 280, the demurrer could only be adopted in the particular cases prescribed by the act. The substance of the provision of the Code of Procedure was preserved in section 518 of the Code of Civil Procedure, which provides that “this chapter prescribes the form of pleading in an action, and the rules by which the sufficiency thereof is determined, except where special provision is otherwise made by law.” See 1 Rum. Pr. 244. In Marie v. Garrison, 83 N. Y. 23, it Is said by Andrews, J., that “special demurrers, as known in the former practice, have no place in our present system of pleading. The Code authorizes a demurrer for specific causes, and no pleading is demurrable unless it is subject to one or more of the objections specified in the section defining the grounds of demurrer.” We fail to find any authority for the interposition of the demurrer in the present case, and we are therefore of the opinion that the special term properly held that it would not lie.

*803It may be that the respondent might have moved to have the demurrer stricken out as irregular (Doughty v. Devlin, 1 E. D. Smith, 629), but no question is here made on that subject, and the appellant is not in a position to raise any. The demurrer was properly overruled, and the judgment should be affirmed.

Interlocutory judgment affirmed, with costs, on the ground that the demurrer would not lie. All concur..