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People v. New York City Central Under-Ground Railway Co.

15 N.Y.S. 225 Court N.Y. Gen. Term Decision date 1891-06-26 English

Delivered by Van Brunt, P. J.

Contents

Majority

p. 225
People v. New York City Central Under-Ground Ry. Co. et al.
(Supreme Court, General Term, First Department.
June 26, 1891.)

Headnote

Pleading—Demurrer—Appropriate Remedy.
Where a complaint does not state a cause of action or demand any judgment against one of several defendants, the remedy of such defendant is by demurrer to the complaint, and not by motion to strike it out.
Appeal from special term, New York county.
Action by the people of the state of New York against the New York City Central Under-Ground Bailway Company and another. From an order denying a motion to strike out the complaint, defendant named appeals.
See, also, 15 N. Y. Supp. 245 .
Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.
George Hoadly, for appellant. D. J. Dean, for the People.

It seems to us that the answer to this motion is simple. If a judgment is entered which is not authorized by law, having reference to the prayer for relief in this action, the defendant appellant has its motion to set it aside, and is amply protected. If it is sought to sustain this motion upon the ground that no cause of action is alleged against the defendant appellant, then the remedy of such defendant is very simple, viz., to interpose a demurrer to the complaint, and have the issue of law tried in the usual way. The order appealed from should be aflirmed, with costs. All concur.