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Mann v. Milne

28 N.Y. Sup. Ct. 408 Court N.Y. Gen. Term English

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p. 408
R. DE WITT MANN, Respondent, v. WILLIAM D. MILNE, Appellant.

So much of the order appealed from as gives defendant leave to amend his answer affirmed ; and so much as strikes out the second and third counts of the answer, with costs, reversed, with leave to

p. 409
plaintiff to demur to said counts; no costs of this appeal to either party. Held, that the remedy of the plaintiff, the counts being hypothetical, is by demurrer, and not by motion to strike out. (McCormick v. Pickering, 4 Comst., 276 ; Conger v. Johnston, 2 Den., 96 ; Code of Civ. Pro., §§ 494, 783.)