Miller v. Heath
New York Supreme Court
The defendants demurred to the declaration. The court, -^as* term, overruled the demurrer as frivolous, The attorney for the defendants afterwards made affidavit that he demurred in good faith, sincerely believing that the declaration wanted substance ; and that the plaintiff had not lost a trial. One of the defendants made affidavit that the defendants had a good and substantial defence on the merits, as he was advised by counsel and vérily be-heved.
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The defendants demurred to the declaration. The court, -^as* term, overruled the demurrer as frivolous, The attorney for the defendants afterwards made affidavit that he demurred in good faith, sincerely believing that the declaration wanted substance ; and that the plaintiff had not lost a trial. One of the defendants made affidavit that the defendants had a good and substantial defence on the merits, as he was advised by counsel and vérily be-heved. On these tacts, moved for leave to withdraw the demurrer i i i . „ . and plead, on payment oí costs.
1Opinion of the Court
Curia.
Take your motion, on paying the costs of the demurrer, and of this motion. It is not of course, on overruling a frivolous demurrer, to allow the party to withdraw it and plead. But it has often been done where the attor*102nev demurred in good faith; and a defence on the *merits J ° * . _ is sworn to. An application for this, is most properly Drought forward in the form of a non-enumerated motion, on notice.
Eule accordingly. [1]
Sutherland, J., was absent.
The New York Code provides that after the decision of a demurrer, either at a general or special term, the court may, in its discretion,…
2Cited by7 opinions
- J.A. R.A. Reid v. Prov. Journal Co.Supreme Court of Rhode Island · 1897
- Fisher v. . GouldNew York Court of Appeals · 1880
- Darrow v. MillerNew York Supreme Court · 1850
- McNeil v. Board of SupervisorsAppellate Division of the Supreme Court of the State of New York · 1909
- United States v. LeverichDistrict Court, S.D. New York · 1881
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