The Superior Court of New York City, 1829

Roberts v. Kelly

The Superior Court of New York City · Decided August 15, 1829

2 Hall 307

Counsel

The defendant having joined in the demurrer, the cause was argued by Mr. E. Paine for the plaintiff, and by Mr. R. S. Church for the defendant., Mr. Paine contended,, Mr. Church, for the defendant, contra, contended,

Opinion of the Court

The Court gave judgment for the plaintiff on the demurrer, upon the ground that the rejoinder was a departure from the plea. They held also, that the replication was defective for duplicity, but that this defect, being one of form merely, could not be noticed except upon a special" demurrer,—as the rule, that the court will give judgment against the first defect in pleading, applies to defects is substance only.

[E. Paine, Att’y for the plff. R. S. Church, Att’y for the deft.]

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