Taylor v. Richards
The Superior Court of New York City
Demurrer to answer. This action was brought to recover for the use and occupation of apartments in the City Assembly Rooms, in this city. The complaint also alleged a hiring by the defendants. The defendant, Richards, in his answer alleged, that there was a defect of parties; that several persons, (naming them,) “all of whom reside in the City of Flew York,” ought to be joined as defendants.
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Demurrer to answer. This action was brought to recover for the use and occupation of apartments in the City Assembly Rooms, in this city. The complaint also alleged a hiring by the defendants. The defendant, Richards, in his answer alleged, that there was a defect of parties; that several persons, (naming them,) “all of whom reside in the City of Flew York,” ought to be joined as defendants. The answer then proceeded to allege that “if” the defendants used and occupied the. premises, or “if” they hired the same, or “if” they promised to pay the sum in that behalf mentioned in the complaint,…
1Opinion of the CourtMonell, J.
The first objection to the answer is that it is hypothetical; that the defendant seeks to avail himself *680of a defect of parties only in the event of the plaintiff’s proving a hiring, or a promise by the defendant.
The first answer to this objection is, that it is not available upon demurrer. (Ketcham v. Zerega, 1 E. D. Smith, 553; Wies v. Fanning, 9 How. Pr., 543.)
The second answer is, that pleading a hypothesis, as it is pleaded in this case, is not objectionable. Pleas totally inconsistent with each other are not a novelty. The “general issue,” (which denied the making,) and payment or…
2Cases cited2 opinions
- Buhler v. WentworthNew York Supreme Court · 1854
- Wies v. FanningNew York Supreme Court · 1854
3Cited by6 opinions
- A. F. Hutchinson Land Co. v. Whitehead Bros.New York Supreme Court · 1926
- Corn v. LevyAppellate Division of the Supreme Court of the State of New York · 1904
- Wiley v. Village of Rouse's PointNew York Supreme Court · 1895
- Strong v. SproulNew York Court of Common Pleas · 1872
- Polstein v. SmithAppellate Division of the Supreme Court of the State of New York · 1934
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