Thumb v. Walrath

6 How. Pr. 196

• Court: New York Supreme Court
• Decided: June 15, 1851
• Status: Published

Opinion

Willarb, Justice.

The second defence in this action, or, as we should call it in former times, the second plea, commences as an answer to the whole complaint, and assumes to answer the whole, by showing that the defendant was rightfully in the possession of three and a half acres, parcel of the thirty-two acres of land, to recover which the action was brought. This is no answer to the whole action, and consequently upon well settled rules of pleading, the answer demurred to is bad (1 Chitty Pl. 510; 1 Saund. 28, n. 3; Cooper vs. Embry, 1 Wen. 347; Root vs. Woodruff, 6 Hill, 421). It does not help the matter that the defendant has put in a complete answer to the whole complaint in his first defence. The two answers must each stand by itself, and one can not aid the other. The defendant should have interposed an appropriate answer as to all but the three and a half acres; and, as to that part of the premises, set out his defence. If it be granted that a tenant at will, who has put in a crop, is entitled to retain possession until the time of harvesting the crop has arrived, it by no means follows that he is entitled to retain the possession of the whole farm. It is enough that he has the necessary egress and regress to protect the crop while growing, and to take it off when it has come to maturity (see 4 Kent Com. 111). The demurrer is well taken to the second defence, but the defendant is entitled to amend on payment of $22 costs.