¶1(dissenting). This action is to recover a balance of $500 claimed to be due upon a contract to sell and deliver brick to the defendant, amounting in all to the sum of $46,183.95. The contract was made between the defendant and the Gatskill Shale Brick & Paving Company, and the plaintiff claims as a receiver of the Eastern Paving Brick Company, which had succeeded, as an assignee, to the balance due upon such contract, from a company known as “Eastern Paving Brick Company,” to which the Catskill Company had assigned, and which had performed the same. The answer of the defendant consists of five paragraphs or subdivisions. In the.first four it admits the making of the contract with the Catskill Company, as claimed in the complaint; also that up to the 20th day of May, 1896, which is the date of the alleged assignment to Eastern Paving Brick Company, that company had performed all the conditions of the contract on its part; also that under such contract there had become due and payable on December 30, 1896, the sum of $46,183.95, and that all but $500 thereof had been paid. But it is also averred in such paragraphs that as to whether the said Catskill Company had ever assigned such contract, or as to whether the Eastern Paving Brick Company, as assignee, had performed the contract, or furnished to the defendant brick to the amount of $46,183.95, or as to whether it had ever assigned the balance due upon such con*534tract to the plaintiff, the defendant had no knowledge or information sufficient to form a 'belief. The answer then proceeds substantially as follows:
“Fifth. Defendant, further answering said complaint, alleges that during or -about the month of December, 1896, there was due from him to the Catskill Shale Brick & Paving Company, under the contract set forth in the complaint herein, the sum of five hundred dollars @509.00) for brick sold and delivered by said company to him, and that said sum so held by this defendant was, during or about the month of December, 1896, duly attached by virtue of three warrants issued to the sheriff of Albany county in three several actions against the Catskill Shale Brick & Paving Company in favor of creditors, and that thereafter judgment was obtained in each of said actions, and executions issued to said sheriff of Albany county, which said executions were satisfied by said sheriff out of said fund so held by said defendant.”
¶2The plaintiff has demurred to this fifth paragraph on the ground that, as a defense, “it is insufficient in law upon the face thereof.” Such demurrer was sustained at Special Term, and from the order sustaining the same and the judgments entered thereon this appeal is taken.
¶3This fifth paragraph does not refer to, or incorporate within itself, any of the prior denials or averments, nor does it purport, in terms, to be a further, separate, and distinct defense. Neither of the prior four paragraphs pleads any affirmative defense by itself, and, taking them all together, without the aid of the fifth, they would state no defense other than to put the plaintiff to its proof that it was the assignee of the balance due on the contract. The defense intended was evidently more than that. It was that the $500 conceded to be owing upon the contract had been paid by an application of it upon the demands of attaching creditors of the Catskill Company, without any knowledge of the defendant that such contract had ever been assigned. Such was the defense, and the only one, intended. Although divided up into paragraphs, there is no intimation that each is intended as a separate defense; .on the contrary, it is plain that they were not so intended. The fifth one does not state that it is a further defense, but that, “further answering,” the defendant alleges, etc.; that is, that, in addition to the facts already stated, the defendant shows the further facts, thus indicating that the fifth paragraph is to be read in connection with the former paragraphs, and that all the facts contained in all the paragraphs constitute the defense which he intends to plead. Inasmuch as the pleader has not indicated any purpose of setting up such fifth paragraph as a defense to the plaintiff’s claim, the plaintiff has no right to treat it as such, and then demur because it does not constitute one. The plaintiff may not select out this paragraph of the answer, and insist that it shall not be read in connection with any of the others, and then demur on the ground that, read alone by itself, it does not state enough to constitute a defense, when nothing in the answer indicates that it was so intended. If, when read in connection with the other paragraphs, it does not add anything to their force as a defense, then it might be stricken out on motion; but it cannot be called a separate defense, and then demurred to because it is not one. The plaintiff gives it a name that the defendant has never given it, and then condemns it because it *535does not justify such a name. Such paragraph must be treated as the defendant has treated it, and as he evidently intended it to be considered, viz., as an averment of part only of the facts which he pleads as constituting his defense. It must be read in connection with the other facts set up in the answer. If all, taken together, do not constitute a defense, then a demurrer would lie to the whole answer; but as to the statement contained in this paragraph alone, no demurrer can be properly interposed.
¶4For these reasons I cannot concur with the conclusion of the court, but think the order should be reversed, with costs.