Smith v. American Turquoise Co.
New York Supreme Court
Appeal from special term, New York county. Action by Alfred H. Smith and another against the American Turquoise Company. From an order denying a motion to strike out portions of the answer, plaintiffs appeal. Affirmed.
1Opinion of the CourtVan Brunt, P. J.
It would seem, from an examination of the papers upon this appeal, that the plaintiffs seek upon this motion to test the sufficiency of a defense set up in the answer. It is true that the motion is directed to a paragraph of the defense, but it is *330evident that in this attack upon this paragraph it is sought to have it adjudged that the defense set up is bad. If we understand the theory of the Code, such an issue must be disposed of upon demurrer, and cannot be determined by motion. If the defense set up is available, the paragraph objected to cannot be considered to be either irrelevant,…
2Cited by3 opinions
- Guthrie v. HowlandIndiana Supreme Court · 1905
- Morgan v. BennettNew York Supreme Court · 1899
- Rankin v. Bush-BrownAppellate Division of the Supreme Court of the State of New York · 1905