Beaumond v. Diecks Pharmaceutical Extract Co.

14 Abb. N. Cas. 100

Opinion

Hawes, J.

Section 1768 requires the court to enter an order directing that the issues presented by the pleadings be tried, in case he deems the proposed defense a meritorious one (see Hutson v. Morrisania Steamboat Co., 12 Abb. N. C. 278), but this does not of necessity imply that the court has determined that the pleadings are unobjectionable, or that each of the issues are valid. If a substantial defense appears in the answer, the court will grant the order, without prejudice to plaintiff’s moving to make more definite and certain, or to strike 'out certain portions altogether. In other words, the answer of a defendant corporation to a suit upon a promissory note is not judicially declared to be wholly valid by the entry of an order under section 1768, but the court clearly does declare that a substantial and meritorious defense does appear upon the face of the answer, but it declares nothing more. This order is granted ex parte, and when issue is joined. the plaintiff is at liberty to make such motion in regard to the pleadings as he may be advised, and without prejudice by reason of the order of the judge. Issues ordered to be tried, and default opened on payment of costs and disbursements to date. Order to be settled on one day’s notice.