New York Supreme Court, 1800

Dole v. Moulton

New York Supreme Court · Decided January 15, 1800

1 Cole. Cas. 87

Counsel

Henry for plaintiff withdrew his demurrer, and now moved that the defendant ele£t one of the three firft pleas and abide by it, for he infilled that the pleas were incompatible. And he moved at the fame time that the two laft pleas be ftruck out for irregularity., Woodworth contra. He contended that pleas have been allowed to Hand together, though feem-ingly incompatible; and cited 2 Blackft. Reports, 1093. And in anfwer to the laft motion he infilled that it was regular to file the two laft pleas at the time he did, under the provi lion contained in the 8th feftion of the Rules of April Term, 1796.

Opinion of the Court

Per Curiam.

The Rule referred to by the defendant’s counfel, that “ Where there íhall be a “ demurrer to a declaration, or to any other plead- “ ing, not being a plea in abatement, the party “ againft whom the demurrer íhall be taken, may “ at any time before the default for not joining in “ demurrer íhall be entered, amend the pleading de~ “ murred to,” will never extend to permit the party to add new pleas: thofe pleas muft therefore be ftruck out.

*89As to the firft motion, the plaintiff, after demurrer, comes too late to drive the defendant to an eleclidn.

Let the plaintiff take only the effedfc of his motion in refpe£t to the two laft pleas.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.