Luyster v. Sniffen
New York Supreme Court
The plaintiff declared upon a building contract,-claiming to recover stipulated damages. The defendant demurred specially for cause, among other things, that the plaintiff, for whom the work was to be done and who was to pay when the work was done, had not averred a willingness to perform on his part. The demurrer was overruled, and judgment rendered for plaintiff at the last term, without leave to withdraw the demurrer and plead.
1Opinion of the Court
Per Curiam, Edmonds, J.:
But that statute has received a different construction from the court. In Bolton v. Lawrence (7 Wend. 461), it was held not to affect the power of the court to allow an amendment where the question raised might have been presented on general demurrer, that is, Where it was matter of substance and not mere form. That is this case; and, as the affidavits show that the demurrer was put in in good faith, and the defendant has a defense on the merits, it will be proper to allow the amendment' on the usual terms.
2Cases cited1 opinion
- Boltons v. LawrenceNew York Supreme Court · 1831