Majority
p. 288MORAN a. ANDERSON. Supreme Court, Special Term; March, 1855.
Headnote
Pleading.—Frivolous Demurrer.The proper mode of raising an objection to the amount of the plaintiff’s claim, is by answer.
Motion for judgment, on account of the frivolousness of a demurrer.
This was an action against the acceptor of two bills of exchange. The complaint contained three counts. The first claimed interest from the 18th of August, 1854, the date of the delivery of the bill to the plaintiffs. The second claimed interest from the 31st of August, 1854, the date of acceptance by the defendants, and the third claimed as damages the fees of protest.
To this complaint a demurrer was interposed, that the complaint did not state facts sufficient to constitute the cause of action therein alleged. The plaintiffs moved for judgment, on the ground of frivolousness of the demurrer. The only question was as to the claim of interest and protest fees.
lebbeus Chapmam,, Jr., for the motion.
J. Ooit, opposed.
The first two objections to the complaint are merely objections to the amount of damages claimed, and this is no less the case with.the third.
Bo doubt the question of damages in lieu of exchange and re-exchange, ordinarily arises in regard to the drawer and indorsers; but the acceptor is liable, at all events, for the expenses of the protest, with interest.
The third objection therefore is also a mere objection to the amount claimed, which of course can be taken advantage of by answer, and adjusted at the trial.
Motion granted, with liberty to defendants to answer in ten days, on paying $10 costs.