Gearon v. Sacks

Bradley, J.: We are not advised by any opinion what reason led the court to the conclusion that the defendants were entitled to judgment on the demurrer, nor does any reason appear for the support of the judgment to.that effect. The plaintiff, in the manner permitted by the statute, put in issue all the allegations of the counterclaim, except as admitted in his reply. (Code Civ. Proc. § 514; Griffin v. Long Island R. R. Co., 101 N. Y. 348.) This would seem to be sufficient to entitle the plaintiff to judgment on the demurrer as it was taken to the entire pleading. In such case a demurrer cannot be sustained if any distinct count of the pleading is good, however bad the residue of it may be. (Cuyler v. Trustees of the Village of Rochester, 12 Wend. 165; Freeland v. McCullough, 1 Den. 414; Peabody v. Washington Co. Mut. Ins. Co., 20 Barb. 339.) Assuming that the defendants alleged in their answer facts constituting a counterclaim, the special matter alleged in the reply on - the subject [8] apparently constitutes a defense to it. But it is insisted by the learned counsel for the defendants that the special matters so alleged by the plaintiff in the reply show that the transaction set forth.therein was affected with usury, and that, therefore, the facts so alleged constituted in law no defense to the alleged counterclaim. It is quite difficult to see on what theory the question of usury can he brought in to the support of. the demurrer. Ho such defense is pleaded in the answer to the cause of action alleged upon the notes, nor is-the counterclaim founded upon the-statute relating to usury, to recover back money paid in excess of the legal rate of interest. (1 R. S. 772, § 3.) And there is no support for the contention that the special matter alleged-in the reply is ineffectual as a defense to the counterclaim, for the asserted reason that it appears by the facts so alleged that the transaction in question was usurious and void. ISTo such- question is raised for consideration by the demurrer. It is unnecessary to extend hack to the answer the inquiry whether the facts there alleged constitute a counterclaim. The interlocutory judgment • should he reversed and judgment directed for the plaintiff on the demurrer. All concurred. Interlocutory judgment reversed and judgment directed for the plaintiff on the demurrer, with costs.