Roosa v. Saugerties & Woodstock Turnpike Road Co.
New York Supreme Court
The defendants, on the 5th of July 1842, in pursuance of leave obtained for that purpose, served an amended answer, to which the plaintiff, within twenty days, demurred, for insufficiency. The demurrer having been argued, judgment was rendered thereon, on the 28th of January, for the defendants, with costs.
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The defendants, on the 5th of July 1842, in pursuance of leave obtained for that purpose, served an amended answer, to which the plaintiff, within twenty days, demurred, for insufficiency. The demurrer having been argued, judgment was rendered thereon, on the 28th of January, for the defendants, with costs. The plaintiff now moved to strike otit, as irrelevant, part of the answer to which he had demurred, and also that the defendants be required to make other portions of the answer more specific, definite and certain.
1Opinion of the Court
Harris, Justice.
The demurrer to the answer was undoubtedly a nullity. Under the Code, as amended in 1852, there can be no demurrer to an answer, unless it contain matter constituting a counter claim. An issue of law could no more be made upon such a demurrer, than upon a rejoinder or surrejoinder, neither of which has a place in the system. It was void, and so, I think, is the judgment that has been rendered upon it. This proceeding, therefore, furnishes no valid objection to this motion.
But, while the plaintiff’s attorneys were engaged with their demurrer, they allowed the time limited for…
2Cited by2 opinions
- Gibson v. GibsonNew York Supreme Court · 1893
- Whitner v. PerhacsNew York Supreme Court · 1890