Roberts v. Morrison
New York Supreme Court
Costs upon affirmance of judgment upon Demurrer. Defendant Morrison demurred to plaintiff’s complaint. Justice Roosevelt at special term, on the 6th of October 1852, decided against the demurrer. The order states “ the plaintiff having moved for judgment on said demurrer as frivolous,” “ ordered, that the plaintiffs have judgment on the demurrer with costs, with leave,” &c. From this decision there was an appeal to the general term.
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Costs upon affirmance of judgment upon Demurrer. Defendant Morrison demurred to plaintiff’s complaint. Justice Roosevelt at special term, on the 6th of October 1852, decided against the demurrer. The order states “ the plaintiff having moved for judgment on said demurrer as frivolous,” “ ordered, that the plaintiffs have judgment on the demurrer with costs, with leave,” &c. From this decision there was an appeal to the general term. The general term, on the 30th of December 1852, affirmed the judgment of the special term and in their order state, “ it appearing to the court that the demurrer…
1Opinion of the Court
Morris, Justice.
The language of a notice can not characterize the action of the court. The action of the court must control, and not the impression of parties or counsel, of the character of such action.
Section 249 of the Code establishes “ an issue of law arises upon a demurrer to the complaint, answer or reply, or to some part thereof.” Section 252 of the Code declares, “ a trial is the judicial examination of the issues between the parties, whether they be issues of law or fact.” Section 253 of the Code directs “ an issue of law must be tried by the court.”
Section 245 of the Code…
2Cited by2 opinions
- Smith v. ThompsonAppellate Division of the Supreme Court of the State of New York · 1907
- Bernhard v. KappNew York Court of Common Pleas · 1871