Masters v. Barnard
New York Supreme Court
Motion by the defendant to set aside a judgment entered in favor of the plaintiff for costs of a demurrer. The plaintiff sued to recover on a promissory note for $78'46, to which the defendant set up in his answer the defence of payment, and also other matters not necessary to state here. The plaintiff replied, denying the allegation of payment, and alleging other matters in reply to the other allegations contained in the defendant’s answer.
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Motion by the defendant to set aside a judgment entered in favor of the plaintiff for costs of a demurrer. The plaintiff sued to recover on a promissory note for $78'46, to which the defendant set up in his answer the defence of payment, and also other matters not necessary to state here. The plaintiff replied, denying the allegation of payment, and alleging other matters in reply to the other allegations contained in the defendant’s answer. To a part of the reply the defendant demurred, leaving, however, the issue of fact as to the defence of payment undisturbed; the demurrer so taken to a…
1Opinion of the Court
Mason, Justice.
There can be no doubt, in my mind, that the plaintiff was in error in entering judgment for costs upon the demurrer, while the issues of fact in the cause were undetermined.
The practice was settled under our former system and there is nothing in the Code that changes it in this respect (Williams ads. Wright, 1 Wend. R. 277; 6 Cow. R. 71; Osborn vs. Lawrence, 9 Wend. R. 445; The People vs. Feeter, 12 Wend. R. 480; 2 Arch. Pr. 286; 1 Burril's Pr. 252; 5 East R. 261). These cases seem to settle the doctrine that where there is an issue of law and an issue of fact joined in a…
2Cited by4 opinions
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