Schwab v. Furniss — 6 N.Y. Super. Ct. 704

Majority

p. 704

Schwab v. Furniss, impleaded, &c.

Headnote

On a demurrer to parts of an answer, the defendant is at liberty to raise the objection that the complaint does not state facts sufficient to constitute a cause of action; and if the objection be well taken, the complaint will be dismissed.

February 20, 1852.

to portions of an answer. On the argument at the special term before Sandford, J., the defendant took the ground that the complaint did not show facts sufficient to constitute a cause of action against him, and that therefore judgment should be given in his favor and the complaint dismissed. The argument proceeded on the questions presented by the demurrer. Before examining those, the judge took the advice of his associates on the point raised by the defendant, and with the concurrence of them all, decided that, on a demurrer to a

p. 705

pleading, or portions of it, the rule now is the same as it was before the code of procedure, that judgment shall be given against the party who committed 'the first substantial fault. That is, if the demurrer be to an answer, and it appear that the complaint does not show a cause of action, judgment shall be given against the plaintiff and the complaint dismissed. (Code, § 148.) If the demurrer be to the reply, the plaintiff may show that the answer is insufficient, and have judgment in his favor.

J. N. Taylor, for the plaintiff.

M. iS. Bidwell, for the defendant, Furniss.

S. Sherwood, for other defendants.

There is no more reason now than formerly, that a plaintiff should have judgment on demurring to an answer, when it appears upon the face of the record that he has no cause of action; or that the defendant should suceded on a demurrer to the reply, when it is apparent upon his answer that he has no defence.

(The judge, thereupon, looked into the complaint, and directed a judgment that it should be dismissed.)