Quin v. Chambers
The Superior Court of New York City
This case came before the court on an appeal from an order, declaring a demurrer to part of an answer tó be frivolous, and that the defendant have judgment on account thereof. The complaint sought to charge the defendant for the alleged conversion of personal property belonging to the plaintiff. The answer, first, denied plaintiff’s ownership, or that the defendant became wrongfully possessed of and converted the property.
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This case came before the court on an appeal from an order, declaring a demurrer to part of an answer tó be frivolous, and that the defendant have judgment on account thereof. The complaint sought to charge the defendant for the alleged conversion of personal property belonging to the plaintiff. The answer, first, denied plaintiff’s ownership, or that the defendant became wrongfully possessed of and converted the property. It next averred that defendant, as and being a constable, took it from the possession of John Connelly, on an execution against him, issued on a judgment recovered against…
1Opinion of the CourtBy the Court. Bosworth, J.
There seems to have been a misapprehension, by both parties, of the existing provisions of the Code in relation to the cases in which a plaintiff may demur. ,
There cannot now be a demurrer to new matter in an answer constituting a defence, unless such new matter sets up a' counter-claim.
The allegation of new matter, not relating to a counter-claim, is not to be replied or demurred to, but “ is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.” Code, § 168.
When it contains new matter constituting a counter-claim, the plaintiff may…
2Cited by4 opinions
- Ayres v. O'FarrellThe Superior Court of New York City · 1863
- Blake v. EldredNew York Supreme Court · 1858
- Kneedler v. SternberghNew York Supreme Court · 1854
- Devlin v. BevinsNew York Supreme Court · 1861