GUY, J.

The complaint alleges that while the defendant Walkof, a city marshal, was making a levy and seizure under an execution against one George Mulinos he entered the place of business of one Helen Mulinos and attempted to and did levy on and seize property of Helen Mulinos for satisfaction of the said execution; that the plaintiff, an employee of Helen Mulinos, informed the marshal that the business and property belonged to Helen Mulinos and not to the judgment debtor, but the said defendant thereupon falsely and maliciously charged plaintiff with interfering with him and then caused plaintiff's arrest; and plaintiff was thereupon at the direction of said defendant taken into the custody of a police officer, conducted to one of the police stations and thereafter to a magistrate's court, where he was imprisoned and restrained of his liberty; and the said defendant falsely and maliciously charged plaintiff with "using threatening, abusive and insulting behavior with intent to provoke a breach of the peace and whereby a breach of the peace might have been occasioned;" that thereafter and on the evening of the same day the plaintiff was arraigned before a police magistrate and on said charge was duly tried, and that the said charge was thereupon dismissed and the plaintiff discharged from custody; and that the plaintiff was in the manner described imprisoned and restrained of his liberty for upwards of five hours, without reasonable cause, and without any right or authority.

The material allegations of the complaint are denied by the answer, and for a separate and distinct defense the defendant alleges that at all the times mentioned in the complaint the defendant was a city marshal; that as such marshal, having in his possession an execution duly issued upon a judgment against George Mulinos, he attempted to levy upon certain personal property of said George Mulinos, whereupon the plaintiff and others interfered with him as such marshal in the performance of his duty; that the defendant thereupon called a police officer of the city of New York; that in the presence of the police officer the plaintiff continued to interfere with the defendant and committed a breach of the peace, "whereupon the said police officer did cause his arrest and brought him before a magistrate;" that at the magistrate's court defendant charged plaintiff with a breach of the peace, "and that said magistrate did thereupon discharge the plaintiff from arrest;" and that all of the aforesaid acts were done by the defendant without malice and in the performance of his duties as an officer, "and that the defendant had reasonable and probable cause to cause the arrest of the plaintiff and prosecute him before said magistrate." There is no denial of any of the allegations of the complaint incorporated in the defense.

Plaintiff demurred to the defense as insufficient upon its face; defendant moved for an order overruling the demurrer, and apparently upon the theory that the complaint alleges merely a cause of action for malicious prosecution the court below made the order appealed from granting defendant's motion.

Plaintiff's grievance is set out in the complaint in the form of a single count and he insists that the cause of action alleged is one simply for false imprisonment, and that whatever the cause or causes of action the failure of the defendant to incorporate in the separate defense denials of the material allegations of the complaint justifies the demurrer.

Under the rules laid down in this department respecting the vexed question of the proper manner of pleading defenses, it has been decided that a defense consisting of new matter, within the purview of section 500 of the Code, must be based on the theory of confession and avoidance, and be such as cannot be proved under the denials; that a denial has no place in an affirmative defense, except when it becomes necessary to deny the existence of some fact alleged in the complaint in order to perfect the answers as a complete affirmative defense; that an affirmative defense, as distinguished from a mere denial, is a separate plea, and in determining its sufficiency all the allegations of the complaint not denied in the separate defense, even though elsewhere denied by the answer, are deemed admitted. Mendelson v. Margulies, 157 A.D. 666; Einstein v. Einstein, 158 id. 498; Pullen v. Seaboard Trading Co., 165 id. 117. The application of these rules condemns the defense in this case, for in the absence of denials in the separate defense, although contained elsewhere in the answer, all of the averments of the complaint are deemed to be admitted in so far as the defense is concerned.

While it has been held by the Court of Appeals, however ( Staten Island M.R.R. Co. v. Hinchliffe, 170 N.Y. 473), that as the demurrer assumes the truth of the facts alleged in defendant's plea, if such facts, even though provable under the prior denials not incorporated in the defense, would defeat the cause of action, the defense is not demurrable, though it may be stricken out upon motion as redundant; and the doctrine of the case cited was applied in this department in Kraus v. Agnew, 80 A.D. 1, even under the test there laid down the defense in this action is insufficient. The pleader has stated a cause of action for false imprisonment, for not only does the complaint allege that plaintiff was imprisoned and restrained by defendant of his liberty, but it also contains the allegation that the imprisonment was without right or authority, and such allegation amounts to an averment that the arrest was unlawful. Ring v. Mitchell, 45 Misc. 493. And see Gearity v. Strasbourger, 133 A.D. 701. Assuming, but not deciding, that a cause of action for malicious prosecution is also stated, the defendant by neglect to make timely motion for the separate statement of the causes of action has waived the right given by the Code of Civil Procedure. Gearity v. Strasbourger, supra.

Although it is alleged in the defense that the plaintiff committed a breach of the peace in the presence of the police officer, "whereupon the said police officer did cause his arrest and convey him before a magistrate," it does not follow that the defendant also did not cause the plaintiff's arrest, nor is that allegation of the complaint denied in the separate defense, and, indeed, it is subsequently averred that the defendant had reasonable and probable cause to cause the plaintiff's arrest; and it at least presumptively appears from defendant's admission that the magistrate upon inquiring into the cause discharged the plaintiff from arrest, that the plaintiff did not commit a breach of the peace. In so far as a cause of action for malicious prosecution is concerned, the discharge of the plaintiff would not necessarily be inconsistent with the existence of probable cause for the prosecution ( Reiss v. Levy, 165 A.D. 1); but the charge made against the plaintiff not being a felony, reasonable cause for belief on the part of the defendant, a peace officer, that plaintiff committed a breach of the peace, if in fact he did not commit such a breach, although it might affect the damages, would not justify the imprisonment complained of, for reasonable cause is mentioned only in the third subdivision of section 177 of the Code of Criminal Procedure, which covers the case of arrest without a warrant where a felony has been in fact committed by the person arrested. Gold v. Armer, 140 A.D. 73; Smith v. Botens, 36 N.Y. St. Repr. 55.

So, that even under the more liberal rule of construction applied in the Hinchliffe and Kraus cases, defendant's affirmative plea was not a complete defense to the whole complaint ( Butler v. General Acc. Assur. Assn., 103 A.D. 273) and the demurrer should not have been overruled.

BIJUR and COHALAN, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.