Fisher v. . Gould
New York Court of Appeals
Appeal from order of the General Term of the Court of Common Pleas in and for the city and county of Hew York, reversing an order of Special Term which granted leave to the defendant to withdraw his demurrer to plaintiff’s complaint and to put in an answer.
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Appeal from order of the General Term of the Court of Common Pleas in and for the city and county of Hew York, reversing an order of Special Term which granted leave to the defendant to withdraw his demurrer to plaintiff’s complaint and to put in an answer. Upon trial of the issue of law raised by the demurrer, an order was made overruling it and directing judgment for the plaintiff, with leave to defendant to answer in twenty days on payment of costs; he did not avail himself of this permission, and after expiration of the time granted judgment was entered. Defendant appealed from the…
1Opinion of the Court
Folger, Ch. J.
This was a motion to the court below to give leave to withdraw a demurrer and to put in an answer. If, as the appellant contends, the motion was one addressed to the favor of the court below, and which rested in its discretion to grant or to deny, we are not able to see that the General Term did not assume that it had the power to grant or deny, and that it did not exert its discretionary authority and deny the motion, as one not meeting with its favor under the facts of the case. The order does not state that the motion was denied for want of power to grant it. The court speaks…
2Cases cited7 opinions
- Tilton v. . BeecherNew York Court of Appeals · 1874
- Tracey v. . AltmyerNew York Court of Appeals · 1871
- Hewlett v. . WoodNew York Court of Appeals · 1876
- Patten v. HarrisNew York Supreme Court · 1834
- Miller v. HeathNew York Supreme Court · 1827
2 more not listed; retrieve them via the Exa API.
3Cited by12 opinions
- Morehouse v. . Brooklyn Heights R.R. Co.New York Court of Appeals · 1906
- National Contracting Co. v. Hudson River Water Power Co.Appellate Division of the Supreme Court of the State of New York · 1905
- McNeil v. Board of SupervisorsAppellate Division of the Supreme Court of the State of New York · 1909
- Mulcahy v. DevlinNew York Court of Common Pleas · 1883
- People ex rel. Follett v. Water Works Co.New York Supreme Court · 1924
7 more not listed; retrieve them via the Exa API.