Spellman v. Weider
New York Supreme Court
The complaint is on a promissory note against maker and endorsers. The defendants have answered, denying all the allegations of the complaint and have also demurred to the same. The plaintiffs now move for judgment on account of the frm l'ousness of the demurrer, under § 247.
1Opinion of the Court
Willard, Justice.
The plaintiffs have mistaken their remedy. No judgment can he given for the plaintiffs until the issue of fact on the record is disposed of. It is very clear that the defendants can not both answer and demur to the same pleading. This was so held by Harris, J., in Slocum vs. Wheeler (4 How. Pr. R., 373). It has been so ruled also in this district in a case not reported. The plaintiffs, however, can not treat the answer as a nullity, and move for judgment on the ground that the demurrer is frivolous; nor can they treat the demurrer as a nullity. The proper remedy ifc to move…
2Cases cited1 opinion
- Bank of United States v. SmithSupreme Court of the United States · 1826
3Cited by6 opinions
- Ingraham v. BaldwinNew York Supreme Court · 1851
- Fisher v. ScholteSupreme Court of Iowa · 1870
- Barnard v. MorrisonNew York Supreme Court · 1883
- Chemical National Bank v. CarpentierNew York Supreme Court · 1881
- McCrae v. SpiresSupreme Court of South Carolina · 1922
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