Smith v. . Rathbun
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the third judicial department, reversing an order of Special Term which denied a motion on the part of plaintiff to strike out a demurrer to the complaint, and striking out the demurrer. (Reported below, 13 Hun, 47.) The facts appear sufficiently in the opinion. The order of the referee authorizing the demurrer could only be questioned by a direct appeal, and was not assailable collaterally.
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Appeal from order of the General Term of the Supreme Court, in the third judicial department, reversing an order of Special Term which denied a motion on the part of plaintiff to strike out a demurrer to the complaint, and striking out the demurrer. (Reported below, 13 Hun, 47.) The facts appear sufficiently in the opinion. The order of the referee authorizing the demurrer could only be questioned by a direct appeal, and was not assailable collaterally. (Code of Procedure, §§ 168, 173, 272; Colburn v. Morton, 3 Keyes, 296, 301-303; Murphy v. Spaulding, 56 N. Y., 556, 559; Bearup v. Carraher,…
1Opinion of the CourtAndrews, J.
This is an appeal from an order of the General Term striking out the demurrer of the defendants to the complaint interposed after an answer had been served in the action. The issues in the action framed by the complaint and answer were by an order of the court, made upon the consent of the parties, referred to a referee for trial.
The action is brought to charge the defendants, the defendant Rathbun personally and the other defendants, executors of one Benjamin, in their representative capacity, with the waste and misappropriation of the funds of The First National Bank of Elmira by its…
2Cases cited4 opinions
- Bennett v. . Van SyckelNew York Court of Appeals · 1859
- Glackin v. ZellerNew York Supreme Court · 1868
- Vail v. RemsenNew York Court of Chancery · 1838
- Brady v. . DonnellyNew York Court of Appeals · 1847
3Cited by8 opinions
- Supreme Lodge, Knights of Honor v. DavisSupreme Court of Colorado · 1899
- General Electric Co. v. National Contracting Co.New York Court of Appeals · 1904
- Miller v. YoumansNew York Court of Common Pleas · 1895
- Perry v. LevensonAppellate Division of the Supreme Court of the State of New York · 1903
- Hausee v. FieroNew York Supreme Court · 1890
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