Robostelli v. Noxon
New York Supreme Court
Appeal from special term, Westchester county. Action by Maria Bobostelli against Charles H. Noxon, to recover a sum of’ money. The defendant, on November 22d, was granted an extension of 15 days “to serve an answer.” On December 6th defendant filed a demurrer, and on the same day plaintiff noticed a motion to overrule the demurrer as frivolous, returnable December 11th. On December 10th defendant served-notice of withdrawal of the demurrer, and served an answer.
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Appeal from special term, Westchester county. Action by Maria Bobostelli against Charles H. Noxon, to recover a sum of’ money. The defendant, on November 22d, was granted an extension of 15 days “to serve an answer.” On December 6th defendant filed a demurrer, and on the same day plaintiff noticed a motion to overrule the demurrer as frivolous, returnable December 11th. On December 10th defendant served-notice of withdrawal of the demurrer, and served an answer. The demurrer' was overruled, and judgment entered for plaintiff on his complaint, and the-motion for leave to serve the answer was…
1Opinion of the CourtPratt, J.
The real question involved upon this motion is whether a demurrer can be regarded as an answer, so that an answer as an amendment can be served as a matter of course within 20 days. The defendant served a demurrer, and before the expiration of 20 days gave notice of withdrawal of the demurrer, and served an answer; the plaintiff in the mean time having made a motion for judgment upon the demurrer as frivolous. A demurrer is-one form of answer, although it is designated as a demurrer. A defendant answers the complaint by saying that it is not valid as a matter of law, so that the plaintiff can…
2Cases cited1 opinion
- White v. Mayor of New YorkThe Superior Court of New York City · 1857
3Cited by1 opinion
- Cashman v. ReynoldsNew York Supreme Court · 1890