First Department, December, 1911. [Vol. 147. tailboard should be provided. In these circumstances, it is perfectly plain that under the principles of the common law, with the same knowledge on his part as was possessed by the president of the defendant, the plaintiff assumed the risk in continuing in the employ of the defendant and using the tailboard. The Court of Appeals has not yet, so far as we are able to discover, decided whether the rule of evidence with respect to assumption of risk prescribed in section 3 of the Employers' Liability Act (as revised by Labor Law, § 202, supra) applies to all actions for negligence, whether predicated on a breach of a common-law or statutory duty, a question upon which there is a difference of opinion on the part of the members of this court (Ward v. Manhattan R. Co., 95 App. Div. 437; Curran v. Manhattan R. Co., 118 id. 347) and of the Appellate Division in the Third Department as well. (O'Neil v. Karr, 110 App. Div. 571; 115 id. 881; affd., 190 N. Y. 509; Bushtis v. Catskill Cement Co., 128 App. Div. 780; affd., 198 N. Y. 548.) The affirmances in the Court of Appeals in the last two cases were without opinion, and the record shows that other points were urged upon which the affirmances may have been based. In view of the recent decision of the Court of Appeals in the Payne Case (supra) the question becomes quite important, for if that rule of evidence be limited to breaches of statutory duty, which may be submitted to the jury with breaches of duty at common law, it will require very clear instructions to enable the jury to discriminate between the different rules of evidence with respect to assumption of risk, depending on whether they find the breach to have been of a common-law or statutory duty. In this connection it may be observed that a similar important question will arise with respect to whether the change in the rule of evidence made by section 202a of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], added by Laws of 1910, chap. 352), by which contributory negligence becomes matter of defense to be so pleaded and proved, applies to all breaches of duty under the Labor Law. We do not, however, deem it necessary at this time to decide that question or to express a further opinion thereon, for in either view we think the trial court was justified in setting aside the verdict. App. Div.] First Department, December, 1911. It was doubtless more convenient for the plaintiff to step on the tailboard where it had been damaged, but this was not necessary. He could have performed his duties by avoiding stepping on the tailboard at that point. The trial court, therefore, on the assumption that the rule of evidence prescribed by the Employers' Liability Act applied and that the case required submission to the jury of the assumption of risk, was fully warranted in setting aside the verdict. That was the only question presented to the Appellate Term for review, and it is the only question brought here for decision by the appeal, but we do not wish to be understood as assuming that the notice served by the plaintiff complied with the requirements of section 2 of the Employers' Liability Act (as revised by Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], $ 201), for it is, at least, doubtful whether it states the cause of the injury, which was the giving way or breaking of the tailboard of the wagon, and not the mere fact that it was in an unsafe and dangerous condition, which without its giving way or breaking would not have harmed the plaintiff. (See Logerto v. Central Building Co., 198 N. Y. 390.) It follows, therefore, that the order of the Appellate Term should be reversed, with costs, and the order of the Municipal Court affirmed, with costs. DOWLING, J., concurred; MCLAUGHLIN, J., concurred in result. INGRAHAM, P. J. (concurring): I concur in the conclusion of Mr. Justice LAUGHLIN upon the ground that in this case there was no question for the jury. Whether the action was under the Employers' Liability Act, being article 14 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), or at common law, I do not think that the finding that defendant was negligent was sustained by the evidence. It does not appear that the tailboard of this wagon was provided for the purpose for which it was used. It was a simple appliance and a part of the wagon in common use. The plaintiff knew that this tailboard had been broken and repaired. He thought a new tailboard should be supplied, and so apparently did the president of the defendant. So far as appears, the First Department, December, 1911. [Vol. 147. tailboard was entirely safe if used as a tailboard. All the plaintiff had to do to avoid injury was not to step upon the part that had been repaired by nailing on a piece of board to enable it to be used on this particular day. The accident was directly the result of the plaintiff stepping on this portion of the board that had been broken of which he knew as much as anybody else. I think under those circumstances that irrespective of contributory negligence or assumption of risk the verdict that the defendant was negligent was against the weight of evidence and justified the court in setting it aside. MCLAUGHLIN and MILLER, JJ., concurred. Order of Appellate Term reversed, with costs, and order of Municipal Court affirmed, with costs. OSCAR B. BERGSTROM, Appellant, v. COMMERCIAL ADVERTISER ASSOCIATION, Respondent. First Department, December 1, 1911. Pleading-libel-demurrer to defenses partial and complete defenses. No demurrer lies to a "separate and distinct defense, both whole and partial." The plaintiff's remedy is a motion to separate the defenses. A demurrer to a defense upon the ground that the facts pleaded do not constitute either a whole or partial defense cannot be sustained where the facts do show a partial defense. Where the facts alleged in a separate defense to an action for libel do not constitute a complete defense but do constitute a partial defense, a demurrer upon the ground that the defense is insufficient in law upon its fac cannot be sustained. APPEAL by the plaintiff, Oscar B. Bergstrom, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of March, 1911, pursuant to an order entered in said clerk's office, bearing date the 23d day of February, 1911, made on a hearing of the issues of law on motion duly made, overruling the plaintiff's demurrers to three separate defenses separately pleaded in the answer, and also App. Div.] First Department, December, 1911. from the said order upon which the interlocutory judgment was entered. Oscar B. Bergstrom, for the appellant. Benjamin N. Cardozo [William Shillaber, Jr., with him on the brief], for the respondent. LAUGHLIN, J.: The action is to recover damages for a libel. The plaintiff alleges that the defendant published an article which was to the effect that he, as assignee of a Japanese firm, received the sum of $6,292 in cash, which he failed to turn over to the trustee in bankruptcy of the firm pursuant to an order made by a judge of the United States court, and that a warrant for his arrest for contempt in failing to obey the order was issued by the judge upon which he was arrested by a United States marshal, and in default of bail was lodged in the Toombs; but the only parts of the article alleged to be false are the charges that he received the money and was lodged in the Toombs in default of bail. The defendant admitted the publication of the article and separately pleaded three defenses, the first of which is pleaded, "For a first, separate and distinct defense herein both whole and partial;" and the second is pleaded, "For a second, separate and partial defense by way of mitigation, and also reduction of damages if the plaintiff has suffered any by reason of any matters alleged in the complaint;" and the third is pleaded, "For a third, separate and distinct defense, both whole and partial." The plaintiff demurred to the first separate and distinct defense on the ground that "it does not show whether it is pleaded as an entire defense or merely as a partial defense in mitigation of damages;" and also assigned as a separate ground of demurrer to this defense that "it is insufficient in law upon the face thereof to constitute either a whole or partial defense." He demurred to the second and third defenses upon the ground that each of them was insufficient in law upon the face thereof The first ground of the demurrer is not an authorized ground of demurrer by either party (Code Civ. Proc. §§ 488, 490, 494), and the plaintiff's remedy with respect thereto was by motion First Department, December, 1911. [Vol. 147. to separate the defenses. (Code Civ. Proc. § 507.) The matters pleaded as a first defense do not constitute a complete defense, for it is not claimed that the article was true with respect to the matters which plaintiff alleges to be false; but the facts therein pleaded do clearly constitute a partial defense in mitigation of damages, for they show that the plaintiff, after becoming the assignee of the firm, allowed the business to be conducted in his name as assignee by the same persons who conducted it before the assignment without any supervision on his part, and without qualifying or filing an inventory, and permitted the trust estate to be disposed of in contravention of his trust, in consequence of which the Federal court charged him with the value of the property assigned to him, and required him to account therefor to the trustee in bankruptcy, and that notwithstanding his failure to perform his duties as assignee he claimed commissions as if such duties were duly performed by him. The plaintiff, however, having demurred on the ground that the facts so pleaded do not constitute either a whole or a partial defense, his demurrer cannot be sustained since the facts thus pleaded do constitute a partial defense. The facts alleged in the second defense, pleaded only as a partial defense by way of mitigation of damages, clearly constitute a partial defense in mitigation of damages, and, therefore, the demurrer thereto was not well taken. The facts alleged in the third defense do not constitute a complete defense for the reason that it is not alleged that the article in the respects already pointed out was true, although the allegations thereof constitute a partial defense; but the demurrer thereto having been taken upon the ground that the third separate and distinct defense is insufficient in law upon the face thereof, cannot be sustained since it is pleaded both as a complete and as a partial defense, and is good as a partial defense. It follows, therefore, that the judgment should be affirmed, with costs, but with leave to plaintiff to withdraw his demurrer on payment of costs in this court and at Special Term. INGRAHAM, P. J., CLARKE, SCOTT and MILLER, JJ., concurred. Judgment affirmed, with costs, with leave to plaintiff to withdraw demurrer on payment of costs. |