Burrall v. Moore
The Superior Court of New York City
The plaintiff gave notice that he would move on the 10th of March, 1856, for judgment, on account of the frivolousness of the answer. The answer set up new matter, which was claimed to constitute a? defence. On the 8th of March, 1856, and within twenty days after the answer had been served, the defendant amended his answer, and served a copy of the amended answer. That fact was shown as being an answer to the motion.
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The plaintiff gave notice that he would move on the 10th of March, 1856, for judgment, on account of the frivolousness of the answer. The answer set up new matter, which was claimed to constitute a? defence. On the 8th of March, 1856, and within twenty days after the answer had been served, the defendant amended his answer, and served a copy of the amended answer. That fact was shown as being an answer to the motion. To this it was replied, that as no demurrer had been interposed to the answer, and as it could not be replied to, but was put at issue by the Code, the defendant could not amend…
1Opinion of the CourtBosworth, J.
The motion for judgment, on account of the frivolousness of the answer, should be regarded as, in effect, a summary demurrer, within the meaning of the provision of the Code, which allows a pleading demurred to to be amended.
A formal demurrer might have been interposed to the answer as being insufficient. In that case there could have been no doubt of the defendant’s right to amend.
That right ought not, by any construction of the Code, to be made to depend upon the plaintiff’s volition. It would depend on that, if he could amend, had the plaintiff formally demurred, and if it be true that he…
2Cited by6 opinions
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- Schmid v. ArguimbanThe Superior Court of New York City · 1873
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