¶1Action to foreclose a mechanic’s lien. The answer put in issue the material allegations of the complaint and set up a counterclaim, to which the plaintiff interposed a reply consisting of four paragraphs. The 1st denied the 6th, the 2d a part of the 5th, and the 3d the 7th paragraphs of the amended answer. The 4th paragraph begins: '“Further replying … plaintiff alleges.” Then follows the statement of certain facts which it is unnecessary to consider. The defendant demurred to the 4th paragraph. The demurrer was overruled and defendant appeals.
¶2Each cause of action pleaded, answer thereto, or reply to a counterclaim must be complete in itself and a demurrer only lies to such pleading as a whole and not to a separate paragraph of it. (Code Civ. Proc. §§ 492, 493, 494; Hollingsworth v. Spectator Co., No. 1, 53 App. Div. 291.) A reply must contain a general or specific denial of each material allegation of the counterclaim controverted by the plaintiff and may set forth in ordinary and concise language new matter not inconsistent with the complaint constituting a defense to the counterclaim. (Code Civ. Proc. § 514.) If it contains two or more distinct avoidances of the counterclaim the same must be “separately stated and numbered.” (Code Civ. Proc. § 517.)
¶3The court below evidently reached the conclusion that the 4th paragraph demurred to was intended by the pleader as a continuation of the preceding paragraphs, and in this I think he was correct. To hold that it was intended as a separate reply is to put into the pleading something which does not there appear. The suggestion is made — not by counsel — that this can be done because the pleader used the words “ Further replying … alleges.” I am unable to ascribe such meaning to the use of these words. They certainly do not indicate it was intended by their use to set up a separate and distinct reply. If the appellant believes such were the intended effect, then the proper practice is to move to make the pleading more definite and certain by compelling plaintiff to separately state and number the paragraph demurred to.
¶4I, therefore, think the order should be affirmed and dissent from a reversal.