Majority
p. 489DAVIS et al. v. BINGHAM et al. (City Court of New York, General Term. October 29, 1900.) Argued before FITSIMOHS, C. J., and HASCALL, J.
Headnote
Obal Pleading—Removal oe Cause—Changing Issues.Where a cause is removed from the municipal court to the circait court, and it is ordered that oral pleadings in the municipal court shall be reduced to writing, the pleadings and issues made cannot be changed except by the court, and, if defendant has answered in the municipal court, an objection that the written complaint does not conform to the oral complaint should be made by answer, and not by demurrer.
Appeal from special term.
Action by Soloman Davis and others against William H. Bingham and another. From an order overruling a demurrer, defendants appeal.
Affirmed.
Thomson & Maloney, for appellants.
Hugo S. Mack, for respondents.
The oral pleadings in the municipal court, upon the removal of the action to this court, became the pleadings in this court. The order of this court simply required that the oral pleadings should be reduced tq writing. This required the parties to do just what the order read. The issues made and pleadings could not be changed, except by this court. Therefore the defendants should have answered here, as they did in the municipal court, and should not have demurred. The complaint should have been also conformed to the oral pleading in the municipal court. If otherwise, objection should have been made by defendants by answer, and not by demurrer.
Order sustained, with costs.