Betts v. Kridell
City of New York Municipal Court
Motion to strike out demurrer as frivolous and for judgment. After service of a demurrer to the complaint, and prior to the hearing of plaintiff’s motion to strike it out as frivolous, defendant served an answer as an amended pleading, within six days after service of the demurrer.
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Motion to strike out demurrer as frivolous and for judgment. After service of a demurrer to the complaint, and prior to the hearing of plaintiff’s motion to strike it out as frivolous, defendant served an answer as an amended pleading, within six days after service of the demurrer. The plaintiff returned the answer, upon the ground that the time to answer had expired and had not been extended, and that the verification was defective in not stating why it was not made by the party. The defendant claimed the right to serve an answer in lieu of the demurrer, under Code Civ. Pro. § 542, providing…
1Opinion of the Court
■ McAdam, Oh. J.—-This
This court decided in 1882 (Frank v, Bush, 2 Civ. Pro. R. (Browne) 250; S. C., 63 How. Pr. 282) that a defendant who has demurred to the complaint may serve an answer as an amended pleading. This practice was followed by the superior court (Freedman, J., in Moffatt v. Henderson,* N. Y. Daily Register, March 2, 1883), and by the supreme court of this department at general term in 1885 (Carpenter v. Adams, 34 Hun, 429). An appeal was taken in this case to the court of appeals and argument was had on the merits. Instead of reversing the order for want of power, the appeal…
2Cases cited10 opinions
- Brown v. . LeighNew York Court of Appeals · 1872
- Diamond v. Williamsburgh InsuranceNew York Court of Common Pleas · 1873
- Frank v. BushNew York City Court · 1882
- Hollister v. LivingstonNew York Supreme Court · 1854
- Prindle v. AldrichNew York Supreme Court · 1856
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3Cited by1 opinion
- Valenza v. StateNew York Court of Claims · 1942