Steward v. Hotchkiss
New York Supreme Court
Assumpsit. J. Platt, for the plaintiff, moved that the defendant’s second plea be stricken out, with costs, on the gr0und that it is untrue, and was pleaded as a sham plea, ° 1 , . The motion was grounded on the following affidavits : 1st- An affidavit by the plaintiffs’ attorney, that on the 21st April, 1824, he received from the defendant’s attorney two pleas, one of which was the general issue; the other, a special plea, which is given below; that this plea contains r r '…
Read the full summary
Assumpsit. J. Platt, for the plaintiff, moved that the defendant’s second plea be stricken out, with costs, on the gr0und that it is untrue, and was pleaded as a sham plea, ° 1 , . The motion was grounded on the following affidavits : 1st- An affidavit by the plaintiffs’ attorney, that on the 21st April, 1824, he received from the defendant’s attorney two pleas, one of which was the general issue; the other, a special plea, which is given below; that this plea contains r r ' ° - *. about 7 folios, andis, as he is informed and believes, utterly ^se jn point of fact, and is entirely a sham…
1Opinion of the Court
Curia.
This plea is false in fact beyond all doubt, and there is some difficulty in saying whether it should be answered, or is demurrable. Notwithstanding the legal question which arises upon its face, we should suffer it to stand upon a very slight suggestion of its truth : none such is made. Its falsehood is conceded, and we will not suffer the plaintiff to be placed in danger of a trap, by requiring him to elect whether he will answer or demur to a plea which is not plainly valid in law upon it face, and at the same time is admitted to be untrue in fact. Take your rule.
Rule to strike out…
2Cited by3 opinions
- Wayland v. . TysenNew York Court of Appeals · 1871
- Beeson v. McConnahaIndiana Supreme Court · 1859
- McNulty v. BattyWisconsin Supreme Court · 1847