KRUSE, P.J.:
1. If the complaint does not state facts sufficient to make out a cause of action, the answer would not be demurrable, although insufficient, because, as has been stated, "a bad answer is good enough for a bad complaint." ( Baxter v. McDonnell, 154 N.Y. 432, 436.)
2. But the complaint states a good cause of action. While some of the allegations of the complaint are germane to a claim under the Workmen's Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd.), it does not affirmatively appear by the complaint as a whole that the claim is of that character.
3. The answer setting up the determination of the Commission is insufficient in law upon the face thereof. It appears by the allegations of the answer that the Commission determined that the claim was not founded upon an accident and was disallowed. Such determination is not an adjudication that the claim is covered by the Workmen's Compensation Law, but quite the reverse.
The interlocutory judgment overruling the demurrer should be reversed, with costs, and demurrer sustained, with the usual leave to the defendant to plead over, if so advised, upon the payment of costs.
All concurred, FOOTE and LAMBERT, JJ., in result only, except DE ANGELIS, J., who dissented.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to the defendant to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.