Vail v. Pennsylvania Fire Insurance

The opinion of the court was delivered by

Pitney, J.

This court having, at the present term, overruled a-general demurrer that had been interposed to the first count of the declaration, defendant thereupon moved, under section 132 of the Practice act ( Gen. Stat., p. 2555), to strike out the same count, on the ground that it is so framed as to prejudice and embarrass a fair trial of the action.

When the motion was made the demurrer had been overruled, but leave to withdraw the demurrer and plead to the declaration had not been asked or granted. As leave to plead, after demurrer overruled, is not…