While it is commonly said that a demurrer admits the truth of all the relevant facts pleaded this does not mean that it admits those facts as a finality and for all purposes and that therefore the demurrant cannot be allowed to assert the contrary in any subsequent proceedings; if that were so the demurrant, upon his demurrer being overruled, could not thereupon file an answer denying the facts stated in the pleading to which he had demurred. All that a demurrer does is to admit the facts for the sole purpose of testing the legal sufficiency of the challenged pleading; what it says in effect is that even if the facts set forth be true they do not constitute a legal claim, or defense to the claim, as the case may be. "A `demurrer' is not an absolute admission of any fact, but simply admits those facts that are well pleaded for the sole purpose of having their legal sufficiency determined by the court": Doughty v. Pallissard, 3 N.Y.S.2d 452, 454, 167 Misc. 55, cited in footnote to Commonwealth, ex rel. Duff, Attorney General, v. Keenan, 347 Pa. 574, 582, 33 A.2d 244, 248; see also Architectural Tile Co. v. McSorley, 311 Pa. 299, 301, 166 A. 913. When plaintiffs demurred to defendant's counterclaim they were merely asserting thereby that, taking defendant at his own word that the O. P. A. regulations had been violated, it would follow that he could not recover on his counterclaim, but that this statement was true was not thereby admitted as binding upon them in any other or further proceedings.
The Attorney General has acted wisely in demurring to the answer of President Judge Keenan, for it is elementary that "the want of definite allegations essential to a cause of action or defense renders a pleading subject to demurrer": 21 R. C. L. 80, citing Southern R. Co. v. King, 217 U.S. 524; Joannes v. Burt, 6 Allen (Mass.) 236, 83 Am. Dec. 625. Mere averments or legal conclusions are not admitted by a demurrer unless the facts and circumstances set forth are sufficient to sustain the allegation: Horsford v. Gudger, 35 F. 388. "Where the averments are so uncertain that the elements of a cause of action or defense are not disclosed, a general demurrer will lie": 49 C. J. 378, Sec. 475. "A 'demurrer' is not an absolute admission of any fact, but simply admits those facts that are well pleaded for the sole purpose of having their legal sufficiency determined by the court": Doughty v. Pallissard, 3 N.Y.S.2d 452, 454, 167 Misc. 55. Judge Keenan's averment of "illness" is too indefinite and uncircumstantial to constitute a well-pleaded defense.
Technically the failure of the defendants to deny the allegations did not constitute an admission since the allegations were not material to the statement of the plaintiff's cause of action. Only material allegations are deemed to be admitted by a failure to deny (Bulova v. E. L. Barnett, Inc., 111 Misc. 151; Doughty v. Pallissard, 167 Misc. 55), but the defendants' brief in this court makes it clear that the defendants actually intended to admit the allegations of the complaint with respect to the habeas corpus proceeding. The facts are restated in the defendants' brief as conceded facts.