¶1I am unable to concur in the opinion of Mr. Justice Ingraham. Each of the defenses demurred to is pleaded as a separate and furthér defense and the first subdivision of each recites that the defendant “ reiterates all the allegations hereinbefore contained.” The answer preceding the separate defenses contains allegations which deny material portions of the complaint and which are incorporated by the recital in each separate defense. If the recitals, were redundant and seriously affected plaintiff’s right to demur to the affirmative defenses coupled with them, then they might have been stricken out on motion. (Code Civ. Proc. § 545; Stieffel v„ Tolhurst, 55 App. Div. 532; State of South Dakota v. McChesney, 87 Hun, 293.) But so long as they remain a demurrer cannot be successfully interposed, even though the new matter pleaded does not constitute a defense. This is precisely what this court has decided in at least two recent cases. ( Uggla v. Brokaw, 77 App. Div. 310 ; Holmes v. Northern Pacific R. Co., 65 id. 49.) These are still in force, and so far as I am-aware have not been questioned. In view of them I think the judgment appealed from should be reversed and the demurrer overruled, with costs to the appellant .in this court and the court below.
¶2Hatch, J., concurred.
¶3Judgment affirmed, with costs.