Ross v. Duffy

12 N.Y. St. Rep. 584

• Court: New York Supreme Court
• Decided: December 13, 1887
• Status: Published

Opinion

Barnard, P. J.

first defense set forth in the answer is complete in itself and is, if true, a good defense to the action. The averment is that the prisoner, George Lennon, was at large without the limits of the liberties of the jail, while he was held by the sheriff under an execution against the person and without the consent of the plaintiff.

The answer makes a complete issue as to this averment. The second defense avers that the person was absent on Sunday from the jail limits and was prevented from returning by an arrest by the procurement of plaintiff for the purpose of preventing a return to the limits. It is not material to inquire whether or not the defense is good in law. The first defense is good. A party may plead as many defenses as he has (Code, § 507), and the objection of inconsistancy is not available. Bruce v. Burr, 67 N. Y., 287.

The case presented, therefore, is that of a general demurrer to an answer, which has two defenses, one undisputably good. In such a case a general demurrer must be overruled. Hale v. Omaha Bank, 49 N. Y., 626.

The order and judgment appealed from, should, therefore, be affirmed, with costs.

Pratt, J., concurs.