Patten v. Harris
New York Supreme Court
The defendant put in a demurrer to one of the counts of the plaintiff’s declaration, which the court at the last general term pronounced to be frivolous, and gave judgment for the plaintiff refusing leave to the-defendant to plead anew. On suggestion of counsel, however, permission was given to make a special application to the court for leave to plead anew, on notice to the opposite party.
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The defendant put in a demurrer to one of the counts of the plaintiff’s declaration, which the court at the last general term pronounced to be frivolous, and gave judgment for the plaintiff refusing leave to the-defendant to plead anew. On suggestion of counsel, however, permission was given to make a special application to the court for leave to plead anew, on notice to the opposite party. An affidavit was now read that the demurrer was interposed in good faith, and an affidavit of merits was produced ; it also appeared from the record, that although there were pleas to other counts, still,…
1Opinion of the Court
By the Court,
Sutherland, J.
It is with great reluctance that we consent to give leave to the party in this case to plead anew; the demurrer may have been interposed in the hope of its proving successful, but it was not put in with the expectation of its deciding the cause upon the merits, and it cannot ' therefore well be said to have been put in in good faith; but there is an affidavit of merits, and unless the defendant be permitted to plead, the whole cause of action will stand confessed upon the record. Under these circumstances, the defendant is permitted to plead anew, on payment of…
2Cited by8 opinions
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- Osgood v. WhittelseyNew York Supreme Court · 1860
- Darrow v. MillerNew York Supreme Court · 1850
- McNeil v. Board of SupervisorsAppellate Division of the Supreme Court of the State of New York · 1909
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