Finch v. Pindon — 19 Abb. Pr. 96

Majority

p. 96

FINCH a. PINDON.

New York Superior Court;

Special Term, April, 1862.

Headnote

Withdrawing Answer.—Demurrer.

The court will not, without special reasons shown, allow a defendant, after having interposed an answer, to withdraw it and put in a demurrer instead.

Motion for leave to demur.

In this action, and another by another plaintiff against the same defendant, the defendant, after issue of fact joined, moved for leave to withdraw her answer and" put in a demurrer to the complaints.

No reason has been furnished, in this case, why the defendant put in an answer instead of a demurrer in the first place. An answer enables the plaintiff to amend his complaint on the trial, and waives a great many objections in regard to irregularity, motions to strike out, and the like. The defendant has the benefit on the trial of every objection, except technical rules, that could be taken by demurrer. The Code seems to favor other modes of defence rather than demurrers. After the defendant made her election as to the time and mode of objecting to the plaintiff’s right to recover by putting in an answer, it is too late to change her mind. The mere consideration of diminishing expense should have been thought of before. This application assumes that it is a matter of course to allow this step to be taken. I am not aware of any such practice, although there may be to withdraw a demurrer and put in an answer on paying costs.

The motions in each of the above cases must be denied, with $7 costs, to be costs in the cause.