Opinion
April, 1899.
Lavina Lally, for motion.
Isaac A. Hourwich, opposed.
The matters set forth in the sixth paragraph or subdivision of the complaint have a bearing only upon the special damages resulting from the defendant's failure to deliver the advertising matter in question, and hence do not constitute a separate cause of action. Vanderslice v. Newton, 4 N.Y. 130; Hallock v. Belcher, 42 Barb. 199; Abbott's Brief on the Pleadings, § 210, p. 190. The complaint is thus found to contain but a single cause of action, and, therefore, the defendant could not demur to a part and answer another portion thereof. Code of Civ. Pro., § 492; Cobb v. Frazee, 4 How. Pr. 413; Ingraham v. Baldwin, 12 Barb. 9. As the demurrer could, under the circumstances, be interposed only to the whole complaint (Code Civ. Pro., § 492), it is manifest that the one served is defective, and should not stand. There appears, however, to have been a misconception by the plaintiffs as to their appropriate remedy. Instead of moving to strike out the demurrer, which would be the proper practice (Cobb v. Frazee, supra; Spellman v. Weider, 5 How. Pr. 5; Smith v. Brown, 6 id. 383), they have moved to compel the defendant to elect whether it will abide by its answer or by the demurrer. The latter remedy is proper only where the defendant both demurs and answers to the same pleading, but here the situation is entirely different, the defendant having demurred to a part, and answered another part of the complaint containing, as seen, but one cause of action, stated in one count. Still, the defect is not fatal, since the notice of motion prays "for such other and further relief as to the court may seem meet," and, under these circumstances, the court is empowered, in its discretion, to grant other relief than prayed for. Van Slyke v. Hyatt, 46 N.Y. 259, 264; Myers v. Rosenback, 7 Misc. 560, 561; aff'd, 9 id. 89; 1 Ency. Pl. Pr. 639. The demurrer is accordingly stricken out, with leave, however, to the defendant within ten days to withdraw the said answer to a portion of the complaint, and to serve an answer to the entire complaint, upon payment of $10 costs to the plaintiffs.
Ordered accordingly.