Sands v. Calkins
New York Supreme Court
Motion to set aside the plaintiff’s second demurrers to the defendants’ amended answers, as unauthorized and improper, in consequence of the former demurrers to the original answers; and in case the court should deny the motion to set aside said second demurrers, for the reason that demurrers to amended answers were irregular, that then the second demurrers be set aside for the reason that the service of the second amended answers was of course, a.nd allowable under section…
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Motion to set aside the plaintiff’s second demurrers to the defendants’ amended answers, as unauthorized and improper, in consequence of the former demurrers to the original answers; and in case the court should deny the motion to set aside said second demurrers, for the reason that demurrers to amended answers were irregular, that then the second demurrers be set aside for the reason that the service of the second amended answers was of course, a.nd allowable under section 172 of the Code, and that the plaintiff insists on proceeding to bring on the argument of the said second demurrers, and…
1Opinion of the CourtMason, J.
The 153d section of- the Code provides that the plaintiff may in all cases demur to an answer containing new matter, where upon its face it does not constitute a counter-claim or defence, and that the plaintiff may demur to one or more of such defences or counter-claims, and reply to the residue of the counter-claims. This language is very broad, and allows a demurrer to an answer in all cases, and it has never been doubted by any judge in the state but that it allowed a demurrer to an amended answer. The rule is well settled that the amended pleading takes the place of, and supercedes the…
2Cited by4 opinions
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