Anonymous — 4 Hill & Den. 56

Majority

p. 56

Anonymous.

Headnote

A demurrer to a declaration cannot be treated as a nullity on the mere ground that it is frivolous, or will work delay.

In order to justify the plaintiff in disregarding the demurrer and entering the de. fendant’s default for not pleading, it must appear that a fraud was attempted upon the rules and practice of the court. Per Bronson, J.

M. I. Townsend, for the defendant, moved to set aside a default for not pleading, which was entered after a demurrer to the declaration had been duly served.

C. M. Jenkins, for the plaintiff,

read affidavits tending to show that the demurrer was frivolous, and put in merely for delay. He cited Bank of Buffalo v. Lowry, ( 22 Wend. 630 ;) Anon. (id. 619.)

By the Court,

In each of the cases cited, a fraud was attempted upon the rules and practice of the court, and it was not allowed to succeed. So, too, it has long been held, that striking out the similiter and demurring, merely-for the purpose of carrying the cause over a circuit, is a fraud upon the rules of the court which will not be tolerated. It was a frivolous demurrer of'that kind to which Cowen, J. alluded in one of the cases cited. Here there has been nothing out of the usual course of proceeding, and we have repeatedly held that a demurrer put in in due time cannot be disregarded on the ground that it is frivolous, or will work delay. A plea is often put in where there is no real defence, and yet if no trick is resorted to fo.r the purpose of effecting delay, the plea cannot be disregarded. The rules and practice of the court allow of some delays without any reference to the question whether there is a real defence or not; such as time to plead, and the delays resulting from the service of a plea or demurrer.. It is only when there is some fraud or trick, that we

p. 57

overlook all the usual forms for the purpose of defeating the contrivance.

Motion granted.

Cases cited

Bank of Buffalo v. Lowry 22 Wend. 630 N.Y. Sup. Ct. p. 56