People ex rel. Demarest v. Laws
New York Supreme Court
Demurrer to portions of an answer, and motion to strike out other portions as irrelevant and redundant. This action was brought by the People upon the relation of Henry Demarest, against George Laws, John Bennett, and John Montgomery. The action was upon an administration bond, given in 1852 by the three defendants, upon the appointment of George Laws to be administrator of the estate of David E. Mosier.
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Demurrer to portions of an answer, and motion to strike out other portions as irrelevant and redundant. This action was brought by the People upon the relation of Henry Demarest, against George Laws, John Bennett, and John Montgomery. The action was upon an administration bond, given in 1852 by the three defendants, upon the appointment of George Laws to be administrator of the estate of David E. Mosier. The complaint, after setting out the making of the bond and the contents of it in the usual way, averred that Demarest, the relator, being a creditor of Hosier, procured a citation to be…
1Opinion of the CourtBirdseye, J.
The objection, so strenuously urged by the counsel for the defendants, that this action is wrongly brought in the name of the People, cannot avail him—And for two reasons:—
The Code, (§ 144, subd. 4,) allows a demurrer to the complaint when it appears on the face of it that there is a defect of parties, plaintiff* or defendant. And by section 148, the failure to take that objection, either by demurrer or answer, (neither of which has been done in this case,) is a waiver of it.
But, again, the action is rightly brought in its present form. The bond sued upon was a contract made to the people of…
2Cases cited1 opinion
- Baggott v. BoulgerThe Superior Court of New York City · 1853
3Cited by1 opinion
- Grow v. WimanCity of New York Municipal Court · 1886