Nelson v. Lounsbury
New York Supreme Court
Demurrer to replication. The action was assumpsit upon a promissory note given to Martha Green, the plaintiff's testatrix, in her lifetime, and dated September 12,1837. Plea, general issue, and actio non accrevit infra sex annos.
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Demurrer to replication. The action was assumpsit upon a promissory note given to Martha Green, the plaintiff's testatrix, in her lifetime, and dated September 12,1837. Plea, general issue, and actio non accrevit infra sex annos. Replication admitting that although the causes of action mentioned in the plaintiff’s declaration did not accrue within six years next before the commencement of the suit, yet that after the causes of action accrued, and before the expiration of six years, to wit, on the 7th of May, 1841, the testatrix died; that on the 11th of June, 1841, letters testamentary were…
1Opinion of the Court
*127 By the Court,
McCoun, J.
If the replication, which is the subject of the demurrer in this case, had concluded with a verification, it would have been clearly bad within the principle decided in Howell v. Babcock's Ex'rs, (24 Wend. 488,) because in form it would have tendered unnecessary and immaterial matter to be put in issue, as-was done in that case. But this replication concludes ,to the country, taking issue upon the plea of actio non accrevit, &c. and thus steers clear of the objection of its being new and immaterial matter which it attempts to introduce and put in issue, in avoidance of…
2Cases cited2 opinions
- Freeland v. McCulloughCourt for the Trial of Impeachments and Correction of Errors · 1845
- Livingston v. OstranderNew York Supreme Court · 1832
3Cited by1 opinion
- Doan v. St. Louis, Keokuk & Northwestern Railway Co.Missouri Court of Appeals · 1889