Majority
p. 10BARNES v. GIBBONS. N Y. City Court Special Term; May, 1884.
Headnote
1. Service of answer after demurrer noticed for trial.] Within the time allowed for amendments of course a defendant who has demurred to the complaint may serve an answer as an amended pleading and thereby defeat argument upon demurrer already noticed by the plaintiff.Trial of demurrer.
A demurrer to the complaint having been noticed for argument by the plaintiff and brought on for hearing, it appeared, after service of the notice of argument, that within six days after service of the demurrer, the defendant had served an answer as an amended pleading.
Sutherland D. Smith, for the plaintiff.
Thomas F. Byrne, for the defendant.
The demurrer to the complaint was served on May 14, and on the 20th the defendant served an answer as an amended pleading. This practice is regular. Although the demurrer is noticed for argument, the service of an answer within six days after service of the demurrer defeats the argument on the former pleading. Before the time to amend expires, the plaintiff may notice the demurrer for argument; but he does so at the risk of avoiding his proceedings by an amendment of the pleading (Robertson v. Bennett, 1 Abb. N. C. 476 ; Frank v. Bush, 2 Civ. Pro. R. [Browne] 250; S. C., 63 How. Pr. 282 ).
Cases cited
- Frank v. Bush 63 How. Pr. 282 p. 10