154 N.Y. 432, Baxter v. McDonnell

Citation:154 N.Y. 432
Party Name:JOHN F. BAXTER, Respondent, v. CHARLES E. MCDONNELL, Appellant.
Case Date:November 30, 1897
Court:New York Court of Appeals

Page 432

154 N.Y. 432

JOHN F. BAXTER, Respondent,



New York Court of Appeal

November 30, 1897

Argued November 22, 1897.

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Henry C. M. Ingraham and Joseph E. Owens for appellant.

L. J. Morrison for respondent.


The question certified by the learned Appellate Division to this court for determination is as follows: 'Is the third separate and affirmative defense contained in the defendant's

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answer herein insufficient in law upon the face thereof to constitute a defense?'

We have recently held that it is not the duty of this court to answer a question certified to it that will admit of one answer under one set of circumstances and a different answer under another, or where it presents only an abstract proposition, no facts being disclosed by the record to show that it arose in the case. ( Grannan v. Westchester Racing Association, 153 N.Y. 449.) While we are confined to the question certified, it is our duty to examine the record not only to see that it actually arose, but also to see how it arose, so that we can decide it as it was presented to the courts below. In other words, we should ascertain all the facts that raise the question, so that it can be decided as an existing issue between the parties and the danger of passing upon merely abstract propositions may thus be avoided. The question, therefore, is not whether the facts alleged in the third division of the answer are insufficient to constitute a defense to a complaint that is admitted to set forth a good cause of action, but whether they constitute a defense to the cause of action purporting to be alleged in the complaint before us. The judgment of the court is thus invoked upon the law of the case as presented by the complaint and the third defense alleged in the answer. ( Lewis v. Cook, 150 N.Y. 163, 165.)

The rule is that on demurrer to an answer for insufficiency the defendant may attack the complaint on the ground that it does not state facts sufficient to constitute a cause of action. ( People v. Booth, 32 N.Y. 397; Village of Little Falls v. Cobb, 80 Hun, 20, 27; 6 Encyc. of Pl. & Pr. 326.)

A demurrer searches the record for the first fault in pleading and reaches back to condemn the first pleading that is...

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