Barnard v. Morrison
New York Supreme Court
Appeal from an order of the Special Term requiring the defendant to elect whether he will stand by the answer or the demurrer. The action was brought to recover money lost by the plaintiff in playing poker with the defendant. The defendant denied certain of the allegations of the complaint, and set up two separate defenses.
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Appeal from an order of the Special Term requiring the defendant to elect whether he will stand by the answer or the demurrer. The action was brought to recover money lost by the plaintiff in playing poker with the defendant. The defendant denied certain of the allegations of the complaint, and set up two separate defenses. The answer then read as follows : “ Fourth, and, as a further and distinct defense to the matters set forth in the amended complaint, the defendant avers: that it does not state facts sufficient to constitute a cause of action; that nq cause of action has accrued to the…
1Opinion of the Court
Macomber, J.:
It was a mistake for the learned judge at Special Term to regard the pleading served by the defendant as both an answer and a demurrer. The clause therein, “ that the complaint does not state facts sufficient to constitute a cause of action,” though a ground of demurrer, may or may not be a demurrer, according to the connection in which it is used with other matters. When appearing with denials and with affirmative defenses in an answer, it is no more than a notice, quite unnecessary to be sure, that at the trial the defendant ydll move for a dismissal of the complaint on that…
2Cases cited1 opinion
- Spellman v. WeiderNew York Supreme Court · 1850