Smith v. Rathbun
New York Supreme Court
Appeal from an order denying a motion to set aside a demurrer, served during the trial of tire cause, as irregular and unauthorized, or to adjudge it to be frivolous. The action was commenced in 1869 by Elijah B. Smith, as sole plaintiff.
Read the full summary
Appeal from an order denying a motion to set aside a demurrer, served during the trial of tire cause, as irregular and unauthorized, or to adjudge it to be frivolous. The action was commenced in 1869 by Elijah B. Smith, as sole plaintiff. The complaint alleged, among other things, “that in or about the month of November, 1863, a banking association and corporation, known as the First National Bank of Elmira, was organized and incorporated and commenced doing business in the city of Elmira, in pursuance,,of an act of congress passed February 25,1863, and had continued to do banking business at…
1Opinion of the Court
Boardman, J.:
The questions arising upon this appeal involve, first, the nature and effect of the amendment to the complaint and the power of the referee to allow it, and, second, the regularity and validity of the demurrer. The question as to the frivolousness of the demurrer cannot be considered here. That has been passed upon by the Special Term, and its decision is clearly not appealable. (Dabney v. Greeley, 12 Abb. [N. S.], 191.)
It is clear that the referee had power to allow the amendment in either of two cases: First, if it was to meet an immaterial variance between the pleadings and…
2Cases cited6 opinions
- Le Roy v. BeardSupreme Court of the United States · 1850
- Richardson v. City of BostonSupreme Court of the United States · 1857
- Catlin v. . GunterNew York Court of Appeals · 1854
- Ford v. FordNew York Supreme Court · 1868
- Fredericks v. . TaylorNew York Court of Appeals · 1873
1 more not listed; retrieve them via the Exa API.