RECONSTRUCTION FINANCE CORP. v. GOLDBERG

A demurrer addressed to an entire special defense must be overruled where the demurrer is impotent to reach a mere denial of liability which is, properly or not, a part of such defense.

CORNELL, J.

The special defense, in reality, pleads four defenses. In order that a demurrer addressed to it may be sustainable to the entire defense, it is necessary, of course, that it reach all of the defenses which it contains. That on file does not purport to do this, since nothing in it purports, nor could it accomplish a destruction of that pleaded in paragraph 4 which is merely a denial of liability.

It was available to the plaintiff to have demurred to each paragraph of the special defense which purports to state a separate defense or any number of paragraphs which taken together do so (Practice Book [1934] § 97), and in this way to have eliminated any of such defenses which might be vulnerable to such a pleading.

As the demurrer on file, however, is addressed to the entire special defense and cannot possibly reach the denial in paragraph 4 which — improperly or not — is a part of the defense, it necessarily follows that if granted it would be impotent to destroy that pleading in its entirety, which latter is its objective.