Barnes v. Gibbons
City of New York Municipal Court
Trial of demurrer. A demurrer to the complaint having been noticed for argument by the plaintiff and brought on for hearing, it appeared, after service of the notice of argument, that within six days after service of the demurrer, the defendant had served an answer as an amended pleading.
1Opinion of the CourtNehbbas, J.
The demurrer to the complaint was served on May 14, and on the 20th the defendant served an answer as an amended pleading. This practice is regular. Although the demurrer is noticed for argument, the service of an answer within six days after service of the demurrer defeats the argument on the former pleading. Before the time to amend expires, the plaintiff may notice the demurrer for argument; but he does so at the risk of avoiding his proceedings by an amendment of the pleading (Robertson v. Bennett, 1 Abb. N. C. 476; Frank v. Bush, 2 Civ. Pro. R. [Browne] 250; S. C., 63 How. Pr. 282).
2Cases cited2 opinions
- Frank v. BushNew York City Court · 1882
- Robertson v. BennettThe Superior Court of New York City · 1877