New Jersey v. New York

Syllabus

At January term 1881, an order was made, giving the state of New York leave to appear in this case on the second day of this term and answer the complainants’ billj and if there should be no appearance, that the court would proceed to hear the cause on the part of tire complainants, and to decree on the matter of the bill. On the first day of the term, a demurrer to the complainants’ bill was filed, which was signed “ Green C. Bronson, attorney-.general of New York.” No other appearance was entered on the part of the defendants. By the court: the demurrer filed in the ease by the attorney-general of New York, he being a. practitioner in this court, is considered as an appearance for the state. If the attorney-general did not so mean it, it is not a paper which can be considered as in the cause, or be.placed on the files of the court.

The demurrer being admitted as containing an appearance by the state of New York, it amounts to a compliance with the order of the court.

A demurrer is an answer in law to the bill, though not, in a technical sense, an' answer according to the common language of practice.

MR FRELINGHUYSEN, with whom was Mr Wirt, stated, that at the last court an order was made, giving the state of New Yo?k leave to appear on the second day of this term and answer the bill of the complainants; and if there should be no appearance, the. court would proceed to hear the cause on the part of the complainants, and to decree on the matter of the bill. 5 Peters, 291. Instead of appearing, the state of New York has demurred; and this mode of proceeding is resisted in a written argument, which is now handed to the court.

Mr Beardsley stated, that he had filed and served the demurrer for the attorney-general of New York. He was not counsel in this cause for New York,.nor was any counsel, to. his knowledge, in the city who represented that state. The attorney-general was not expected until the argument of the demurrer should come on. As he had filed the demurrer as agent for the attorney-general, he would, with the permission of the court, make a few suggestions..

He asked if the court would entertain, a motion of this kind without notice. The application is to take a paper off the files of the court, not. to prevent its being filed. It has been filed

The attorney-general of New York; no doubt, considers the demurrer as an appearance in the cause; although it contains a suggestion that the court has no jurisdiction. Sucha suggestion must at all times be unobjectionable, but in this'case it vyas peculiarly proper; as this court, in granting the orderof the last term-observed,. that. “ the question of proceeding to a final decree would be considered as not conclusively settled, until the cause should come on to.be heard in chief.” The demurrer must-have been intended as an appearance; and is one in its terms, as will be seen by a reference to it.

It may be, that no appearance, has been' formally entered on the minutes .of the clerk: he had not looked at those minutes. The entry of an appearance was mere form; and the filing óf a demurrer was amolé authority for making such entry, if at all necessary.

In -England, the filing a demurrer is considered as an appearance in the cause. Upon this, the authorities, he supposed, were uniform.

The terms of the demurrer show that it constitutes an appearance. It asserts that the people of New York are not bound to appear, and insists that they should not be prejudiced by appearing. The conclusion prays “judgment,” and “judgment whether any further answer should be required.” . This is placing the case upon the judgment of the court; and must be considered, from the.very force and meaning of the terms, as an appearance in the cause, and an authority to enter an appearance with the clerk.

The order of th.is court, which was granted at last term, was that the péoplé of the state of New York shall “ appear” and “ answer the bill of the complainant.” That is, that they shall appear and defend; and the court, by granting that rule, did not intend to decide on the jurisdiction of -the court in the case, or to preclude the defendants frota putting !p a demurrer, if they thought proper to do so. The order was not intended to discriminate, strictly, between an answer and a demurrer.

No rules have been established for regulating the course of proceedings in such cases: the English rules may therefore be appealed to and invoked. Why shall not this court permit a demurrer to be • filed ? And why may not this form be pursued, as well as a plea or answer,-setting up matter of fact?

The order of the court was not intended to prevent the proceedings in the case being in any form which might be thought proper, in order to present the question of jurisdiction and the merits of the case. A demurrer admits all facts well stated in tjie bill. Why require an answer, if the defendants are willing to admit the facts alleged? Certainly the plaintiff should not object. In New York, when a biH .is filed, and process duly served, the order is to appéar and answer; and not that he answer, demur or plead: such he supposed was the order in ,the English chancery. No one was ever .defaulted in such case, by reason of his filing a demurrer or pleá instead of an answer. A. demurrer is indeed an answer in law, and so strictly and literally within the order.

If this is the interpretation of the rule granted at last term, the demurrer is ,a sufficient compliance with the rule. If it-requires the signature of a solicitor of this court, as such, it will no doubt have such a signature: it is contended, however, that the signature of the attorney-general, known by the records of the court to be on. bf its solicitors, is sufficient, although he has not in terms signed as solicitor.

In a case like this, the signature of the attorney-general, as such, ought to be abundantly sufficient; aftd indeed it is the only-way in which a defence can properly be made. He. is the law officer of the state; the sole law officer of the state. Proceos in this cause was served ori him as such law officer. Certainly, then, the plaintiff should not object,-that he is'not authorised to a.ppear for'New York; or that , he should have signed as solicitor, and not as attorney-general. He "has been recognized.by the plaintiff, and by the court, as the proper law. officer of New York, to appear and defend this cause.

But if, by the strict rules of English practice, the filing of the demurrer in its present form is not sufficient, as this is a new and a special case, the court will not enforce the rule without notice; nó disrespéct on .the part of the attorney general could have been intended. By the English authorities it' will be Seen that a defendant failing to appear, iftay appear and demur as well- as answer, at any time until affected by process: of contempt. 3 Bro. Ch. Cases, 372; 10 Ves. 444.

Mr Beardsley said he had thus interfered, without having been authorised to act for the state of New York. Having been

requested by the attorney-general of New York to deliver the demqrrer to the clerk of the court, he had done so: and from his knowledge of the views of the attorney-general, he felt himself at liberty to say, that he designed to appear and'argue the demurrer, when reached on- the calendar; although he could not at all have anticipated an application like the present. As he .had not perused the written- argument which had been handed to the court, he could not suppose he had furnished an answer to all its views; he, however; would not trouble the court further.