Pach v. Gilbert
Superior Court of Buffalo
Action by Moritz Pach against Frank T. Gilbert, as sheriff of Erie county, for failure to levy an execution. When the cause was reached for trial, plaintiff moved for judgment on the pleadings because of the alleged insufficiency of the answer. After oral argument and the submission of briefs, the court decided the motion adversely to plaintiff. The cause was tried at a subsequent term and a verdict was directed in plaintiff’s favor.
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Action by Moritz Pach against Frank T. Gilbert, as sheriff of Erie county, for failure to levy an execution. When the cause was reached for trial, plaintiff moved for judgment on the pleadings because of the alleged insufficiency of the answer. After oral argument and the submission of briefs, the court decided the motion adversely to plaintiff. The cause was tried at a subsequent term and a verdict was directed in plaintiff’s favor. Plaintiff now claims that the proceeding at the former term was the trial of an issue at law, and that consequently he is entitled to two trial fees. For…
1Opinion of the CourtBeckwith, C. J.
The old Code, the Code of Procedure, contained (section 252) a definition of the term “trial.” It defined a “trial” to be “the judicial examination of the issues between the parties, whether they be issues of law or of fact. ” notwithstanding the exact, well-known, technical meaning of the word “issues,” and the explications found in the preceding sections of that Code, and the concise, scientific language of the definition, yet the courts, in the day of that Code, seemed to find latitude to call points of controversy arising by other means than the pleadings “issues,” and their…
2Cases cited2 opinions
- Starin v. . the PeopleNew York Court of Appeals · 1871
- Place v. Butternuts Woolen & Cotton Manufacturing Co.New York Supreme Court · 1864
3Cited by1 opinion
- Griggs v. MeekWyoming Supreme Court · 1927