and 106 New York State Reporter of this action. If a test be made of the interest of the witness in the event, the witness must be put in a position to either gain something by his testimony, or in some manner sustain a loss. The note was a joint promissory note, but each individual partner of said firm was personally as well as jointly liable as a maker. This action is in form against the personal representatives of Joseph Rodbourn, one of the makers of said note, and if he were living the debt could be enforced against him individually. If this proposition is sound, it is difficult to see how the surviving partner, the witness, has any interest in the event, since there is no evidence to show that there are any co-partnership assets left with which to pay said note, or against which its collection could be enforced in this action. An interest merely in the action is not enough to disqualify the witness, since that is not an interest in the event; and unless the witness shall gain or lose by the event, either directly or indirectly, he is not disqualified. Bank v. McCarty, 149 N. Y. 71, 43 N. È. 427. The making and delivery of the promissory note in question to the plaintiff was not a transfer by Joseph Rodbourn to the maker, within the rule that an interested party is not a competent witness to testify to personal transactions against the representative by or through whom the plaintiff took her title. Comstock v. Hier, 73 N. Y. 269, 29 Am. Rep. 142; Wilcox v. Corwin, 117 N. Y. 500, 23 N. E. 165. As I understand the rule, the interest must be a present interest, the gain a present gain, the loss a present loss. It is difficult to see, therefore, in what manner, in this action, the witness can gain or lose. A judgment here will not bind him. Still it may be said that he is liable to contribute; but this liability is contingent and in another form of action, in another proceeding, and must depend upon circumstances which may defeat the remedy against him. The witness' interest in the event of the action must be certain, not probable or speculative. Eisenlord v. Clum, 126 N. Y. 552, 556, 27 N. E. 1024, 12 L. R. A. 836; Bank v. McCarty, 149 N. Y. 71, 84, 43 N. E. 427. The witness has no interest in the event of this action as husband. The claim belongs to his wife. Neither the agent nor the husband can be said to be interested parties. Savercool v. Wilsey, 5 App. Div. 562, 39 N. Y. Supp. 413; Nearpass v. Gilman, 104 N. Y. 506, 10 N. E. 894; Clark v. McNeal, 114 N. Y. 287, 21 N. E. 405, 11 Am. St. Rep. 638; Whitman v. Foley, 125 N. Y. 651, 26 N. E. 725; Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122. Assuming, for the sake of the argument, that the witness Hixson is an interested party, it is clear that he was testifying against his own interest. The only manner in which this action can be maintained is by the payment or application of the $25 on said note; otherwise the note would be barred by the statute of limitations. By an amendment of the Code of Procedure carried into section 829 of the Code of Civil Procedure, the witness must not only be interested in the event, but he must be testifying in his own behalf or interest, not against his interest. Carpenter v. Soule, 88 N. Y. 251, 42 Am. Rep. 248; Wilcox v. Corwin, 117 N. Y. 500, 23 N. E. 165; Bank v. McCarty, 149 N. Y. 71, 43 N. E. 427; In re Potter's Will, 161 N. Y. 84, 55 N. E. 387. Several of the facts sought to be excluded by section 829 and testified to on the trial are either admitted in the defendant's answer, or were testified to without any objection on the part of the defendant. Those material facts are personal transactions with the defendant's intestate, and remain in the case notwithstanding the objections taken to the particular evidence complained of. Some portion of the witness' deposition might have been excluded under proper objections, if they had been made at the time the testimony was taken, or even after the commission and deposition had been filed. That class of evidence could have been stricken out or corrected on motion by the defendant before the trial. This certainly is what ought to have been done as to the form of the questions asked, and the conclusions of the witness. Vilmar v. Schall, 61 N. Y. 564; Reynolds v. Reynolds, 20 Misc. Rep. 254, 45 N. Y. Supp. 338; Michaelis v. Campania Metalurgica Mexicana, 51 App. Div. 470, 64 N. Y. Supp. 753. Judgment is ordered for the plaintiff against the defendant for the amount claimed in the complaint, with interest thereon, together with the costs of this action. (36 Misc. Rep. 7.) MCCANN et al. v. HAZARD et al. (Supreme Court, Special Term, Chemung County. March 21, 1901.) 1. PLEADING-DEMURRER. A demurrer to an answer searches the entire record, and all the pleadings are to be considered in its determination. 2. SAME-SUFFICIENCY. A demurrer that an answer containing a defense consisting of new matter "does not state sufficient facts to constitute a defense" is not good under Code Civ. Proc. § 494, authorizing the plaintiff to demur to such an answer on the ground that it "is insufficient in law on the face thereof." 8. EQUITY-COMPLAINT-SUFFICIENCY-ANSWER. Where a complaint in a suit in equity fails to allege that the plaintiff has no adequate remedy at law, the defendant is not required to raise such objection by demurrer, but may allege the existence of an adequate remedy in his answer. 4 PARTNERSHIP-DECEASED Partner-RIGHTS OF SURVIVOR. Where a partner dies, the surviving partner takes the legal title to the partnership property, subject to the equitable right of the deceased partner to a distribution of surplus after the payment of debts. 5. SAME DEATH OF SURVIVING PARTNER. Where a surviving partner dies, his executor takes a legal title to the partnership property for the purpose of settling his estate, but does not succeed him as surviving partner. 6. EQUITY-PLeading-Demurrer-JUDGMENT. Where an answer in equity alleges that plaintiff has an adequate remedy at law, plaintiff's demurrer thereto should not be sustained, even though the defendant has mistaken the application of the rule, since in suits in equity the decree depends on the facts disclosed at the trial, and is not limited to those existing at the commencement of the suit. and 106 New York State Reporter Suit by George McCann, as administrator of the estate of William A. Gildea, deceased, and another, against Anna Hazard, as executrix of Charles Hazard, deceased, and another. Demurrer to answer overruled. H. H. Rockwell (George McCann, of counsel), for plaintiffs. FORBES, J. This is an action in equity, the plaintiffs and the defendants, respectively, representing deceased co-partners. Prior to September 25, 1897, William A. Gildea and Charles Hazard were co-partners engaged in business under the name of the Elmira Roofing Company, located at Elmira, N. Y. On or about the 25th day of September, 1897, Charles Hazard died, leaving a last will and testament by which he appointed Anna Hazard, his wife, as executrix, and James E. Hazard, his brother, as executor. Said will was duly admitted to probate on or about the 15th day of October, 1897, at which time the defendants entered upon the performance of their duties under said will. The other co-partner, William A. Gildea, then became the surviving partner of said firm. He died on or about the 28th day of October, 1897, intestate, and letters of administration were duly granted by the surrogate of the county of Chemung to the plaintiffs, Elizabeth M. Gildea and George McCann, both residents of the city of Elmira, N. Y., and they subsequently entered upon the discharge of their duties as such representatives. On the death of said Hazard, William A. Gildea, the surviving partner of said company, became the owner, for the purposes of said co-partnership, of the assets of said roofing company; and he continued to transact and carry on the business of said firm down to the time of his death. After the plaintiffs and the defendants had entered upon the performance of their duties, each proceeded separately, as the representatives of the respective estates of said copartners, to collect the accounts and assets of said firm, and to pay certain outstanding indebtedness of said co-partners. A controversy arose between the representatives of the two branches of said former co-partnership as to the application of the assets of said. firm so collected. Being unable to agree or neglecting to adjust the matters between themselves as the representatives of said copartnership, having in their hands as such representatives of said firm certain of the assets of said co-partnership, and some dispute having arisen between them as to the application of the partnership funds, the payment of the individual debts of William A. Gildea, one of the said partners, and the use by said co-partners in their lifetime of the funds of said company as between each other, this action is brought in equity, upon the theory of an accounting as under said co-partnership, and for an adjustment of the claims of each of said estates as against the other in relation to the matters arising out of said co-partnership. The defendants answered the complaint of the plaintiffs herein: First. By admitting that they had received divers sums of money as the proceeds of the property of the Elmira Roofing Company, but which funds, the defendants assert, were dis posed of by them, or had been expended as had been agreed upon, settled, and adjusted by and between the parties to this action, under and in pursuance of an agreement between them bearing date July 20, 1899. Second. Then follow subdivisions 2, 3, and 4 in said answer, setting forth denials of any knowledge or information sufficient to form a belief of certain other material allegations of the complaint. Third. For a fifth and further answer and defense to said complaint the defendants plead that the equitable jurisdiction of the court ought not to be invoked or entertained in this action, for the reason that the plaintiffs have a complete and adequate remedy at law for the determination of their rights as such representatives of said co-partnership against the defendants in this action. To the fifth paragraph of the defendants' answer the plaintiffs demur, and state as the grounds of said demurrer, in form, as follows: "The plaintiffs in the above-entitled action demur to that portion of the amended answer interposed by the defendants in the above-entitled action, and designated as paragraph five therein, and to the defense set up in paragraph five, for insufficiency, in not stating facts sufficient to constitute a defense to the action alleged and set forth in the plaintiffs' amended complaint, and, for relief, ask that that portion of the defendants' amended answer be dismissed, with costs." An issue of law having been thus presented to the court, after an oral argument at the Chemung special term, held on the 19th day of March, 1901, the pleadings were submitted. The defendants' attorney raises the question, first, that the plaintiffs' demurrer is defective; that, in substance and form, said demurrer is insufficient to raise the questions sought to be submitted to the court. It is undoubtedly true that, in the decision of the issue raised, the court must resort to each of the pleadings for the purpose of testing the rights of the respective parties. Corning v. Roosevelt, II N. Y. Supp. 758, 25 Abb. N. C. 220, and note; Milliken v. Telegraph Co., 110 N. Y. 403, 18 N. E. 251, 1 L. R. A. 281; Kain v. Larkin, 141 N. Y. 144, 36 N. E. 9; Coatsworth v. Railway Co., 156 N. Y. 451, 51 N. E. 301; Greeff v. Assurance Soc., 160 N. Y. 19, 54 N. E. 712, 46 L. R. A. 288, 73 Am. St. Rep. 659. Under the present practice the only grounds of demurrer by a plaintiff to the defendant's answer are confined to the Code of Civil Procedure. The demurrer attacks the fifth paragraph of the amended answer by the declaration "that said amended answer is insufficient for the reason that it does not state facts sufficient to constitute a Is this form of demurrer good? Under section 494, Code Civ. Proc., "the plaintiff may demur to a counterclaim or a defense setting up new matter, contained in the answer, 'on the ground that it is insufficient in law, upon the face thereof." Golden. v. Health Department, 21 App. Div. 420, 47 N. Y. Supp. 623. Under section 487 the only pleading on the part of the defendant is either a demurrer or an answer. Under subdivision 5 of section 495 the plaintiff may demur to a counterclaim set forth in a defendant's answer, where the defendant demands an affirmative judgment, but the objection thereto must appear on the face of the counterclaim. Under this section of the Code a demurrer must and 106 New York State Reporter state "that the counterclaim does not state facts sufficient to constitute a cause of action." It seems to me that the only ground of demurrer by the plaintiffs to new matter set forth in the defendants' amended answer is found under section 494. It is specific in form, and must be made "on the ground that it is insufficient in law upon the face thereof." This section is a substitute for section 155 of the Code of Procedure. If my position is correct, the plaintiffs' demurrer is defective in form as an issue, and is therefore bad. A demurrer is a technical pleading, and it is the duty of the court to examine the plaintiffs' pleadings critically, and if a material defect is pointed out an issue is not raised in that respect. Corning v. Roosevelt, 11 N. Y. Supp. 758, 25 Abb. N. C. 220, and note. The defendants having a right to demur to or to answer any material allegation of the plaintiffs' complaint, they have elected to answer. The complaint nowhere contains a specific, affirmative allegation that the plaintiffs have no adequate remedy at law. Tripp v. Hunt, 45 App. Div. 100, 61 N. Y. Supp. 585. The defendants therefore could not specifically meet that allegation, and in that manner make an issue. The plaintiffs' complaint does set forth certain facts from which they ask the court to infer that no adequate remedy at law does exist. Therefore that such remedy, in the first instance, has not been resorted to by the plaintiffs. I think that those allegations of the complaint have been put in issue by the defendants' answer. The defendants, availing themselves of their right to set up the defense affirmatively as new matter, have done so under subdivision 5 of said amended answer, to which this demurrer has been interposed. Had the plaintiffs specifically pleaded that there is no adequate remedy at law, the defendants might then have specifically denied that allegation. By the plaintiffs' omission to show that fact affirmatively, as the foundation for beginning an action in equity, was it not the duty of the defendants, if they desired to take advantage of the complaint, to answer by setting up such new matter as a defense? If I am correct, then, the answer was not only necessary, but it is a proper and a material answer to the complaint. If good in form, that answer is not demurrable, assuming that this action is an equitable action. Tucker v. Railway Co., 78 Hun, 439, 29 N. Y. Supp. 202; Tripp v. Hunt, 45 App. Div. 100, 61 N. Y. Supp. 585; Garrett v. Wood, 57 App. Div. 242, 68 N. Y. Supp. 157; Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. 541; Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 25 L. R. A. 674, 42 Am. St. Rep. 712; Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341. It is true, perhaps, that the question might have been raised by the defendants on the trial, but still, under the complaint, that might have been a dangerous experiment. See Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 25 L. R. A. 674, 42 Am. St. Rep. 712; Wakeman v. Wilbur, 147 N. Y. 657, 42 N. E. 341. The delay in raising the question by an answer might have embarrassed the plaintiffs at the trial. On the death of one member of a co-partnership the surviving member becomes the legal owner of the assets of the firm. The survivor has the exclusive right to sell, mortgage, and dispose of |