Opinion
May 3, 1907.
Henry G.K. Heath, for the relator.
Edwin T. Rice, for the respondent.
The alternative writ recites in detail the franchise and contract under which it is claimed that the respondent is under legal obligations to lay water mains, place hydrants, and supply water in the village of Pelham Manor, the relator, and its refusal in certain particulars to comply therewith in each of the said particulars. The 11th subdivision of the return alleges in hæc verba a clause of the "ordinance and contract", which prescribes certain deductions of rent for neglect to supply mains, hydrants and water, and then argues that the effect thereof is that the respondent is not obliged to supply the same, but may as an alternative submit to such deductions. The allegation is not that by the terms of the contract the respondent is exempt, and whether it is or not depends on a construction of the entire contract, and not upon any fragment of it. This statement of facts or defence is therefore insufficient on its face. The plea must be as broad as the writ, unless it be expressly stated to be partial. The same is the case with the allegations of the 12th subdivision. The 13th only relates to the placing of hydrants, and is therefore also only a partial statement or defence, and not being so designated is not good. The 14th only relates to mains and is in the same case. The 15th is a mere argument. And if the company has a supply from any source it does not matter that it is not from the source originally contemplated; it must do its public duty. The 16th does not contain any new matter at all. All that it embraces is embraced in the issues raised by the denials, or that can be raised by denials. The same is true of the 17th, 18th and 19th.
This case cannot be disposed of on technicalities. The relator should refrain from captiousness and bring it on for trial, so that all of the franchises, ordinances, contracts and other facts may be put before the court. Judgment cannot be given on mere fragments.
The interlocutory judgment is reversed in the respects in which it overrules the demurrer to any of the said statements or defences, and affirmed in other respects; and the demurrer is sustained to each thereof.
HIRSCHBERG, P.J., HOOKER, RICH and MILLER, JJ., concurred.
Interlocutory judgment modified by sustaining the demurrer to the separate defenses in respect of which the demurrer was overruled in the court below, and as modified affirmed, with costs to the relator.