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Miller v. Heath

7 Cow. 101 Court N.Y. Sup. Ct. English

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p. 101
Miller against Heath and Heath.

Headnote

a party degoodfefth this oeing shown with 8 nferltsi may withdraw and plead: muirerthe db¡ overruled as
The motion for this purpose is most properly non-enumerated.
The defendants demurred to the declaration. The court, -^as* term, overruled the demurrer as frivolous,
The attorney for the defendants afterwards made affidavit that he demurred in good faith, sincerely believing that the declaration wanted substance ; and that the plaintiff had not lost a trial. One of the defendants made affidavit that the defendants had a good and substantial defence on the merits, as he was advised by counsel and vérily be-heved. On these tacts,
D. Graham,
moved for leave to withdraw the demurrer i i i . „ . and plead, on payment oí costs.
E. Barnes, contra.

Take your motion, on paying the costs of the demurrer, and of this motion. It is not of course, on overruling a frivolous demurrer, to allow the party to withdraw it and plead. But it has often been done where the attor

p. 102
nev demurred in good faith; and a defence on the *merits J ° * . _ is sworn to. An application for this, is most properly Drought forward in the form of a non-enumerated motion, on notice.

Eule accordingly.[1]

Sutherland, J., was absent.

[1] [1] The New York Code provides that after the decision of a demurrer, either at a general or special term, the court may, in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead in, upon such terms as may be just. If the demurrer be allowed on the ground that several causes of action have been improperly united, the court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned. N. Y. Code of 1851, sects. 112, 144.