Rickert v. Snyder
New York Supreme Court
Motion to strike out demurrers. The action in this case was brought to recover for the breach of the covenants of seisin and warranty contained in a deed of land executed by the defendant to the plaintiff The declaration contains four counts, in each of the three last of which, four breaches are assigned.
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Motion to strike out demurrers. The action in this case was brought to recover for the breach of the covenants of seisin and warranty contained in a deed of land executed by the defendant to the plaintiff The declaration contains four counts, in each of the three last of which, four breaches are assigned. The defendant pleaded non est factum to each count, and subjoined to his plea a notice, that on the trial of the cause he would prove that at the time of the ensealing and delivery of the said several indentures, he was seised, &c. and that he had good right, &c. to grant, &c. and that he…
1Opinion of the Court
By the Court,
Savage, Ch. J.
There cannot be a demurrer and a plea to the same part of a declaration. 1 Chitty, 230. The plea of non est factum, with the notice of special matter set up in this case, is equivalent to a special plea to each breach, and having pleaded to the whole declaration, the defendant cannot also demur. The motion is granted with costs.
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- People ex rel. Budd v. Ten EyckNew York Supreme Court · 1835
- Alexander v. SutliveSupreme Court of Georgia · 1847
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