Brodhead v. Brodhead

4 How. Pr. 308

• Court: New York Supreme Court
• Decided: April 15, 1850
• Status: Published

Opinion

Parker, Justice.

The plaintiffs ask to strike out the demurrer as irregular, on the ground that the enlargement of the time to answer gave the defendants no additional time to demur. It was held in the late Court of Chancery, in Burrall v. Raineteaux, 2 Paige, 331, that after a general order made by a vice chancellor, at chambers, giving further time to answer, the defendant could not put in a demurrer, except on special leave of the court; and if he put in such demurrer without leave, it would be ordered to be taken off the files of the conrt for irregularity. But this decision rested upon the ground, that the time to demur could not be enlarged by a chamber order, but that an order of the court was necessary for that purpose. In this respect, the Court of Chancery followed the English practice, (1 Wils. Ch. Rep. 468; 3 Swans. Rep. 683.) An order to enlarge time to answer could be made at chambers, but an order to enlarge time to demur could only be made in court.

In Bedell v. Bedell, (2 Barbour Ch. Rep. 99,) it was held that this principle did apply to a case of an extension of the time by the voluntary stipulation of the complainant’s solicitor. In such case an extension of time to answer gave the defendant the right to demur within the extended time.' In its more liberal sense, the demurrer is an answer to the complaint, and so it was regarded under the late Chancery practice. It was not the restricted meaning of the word “ answer,” but a want of power to use the word at chambers in its more liberal sense, that led to the above cited decision in 2 Paige, on which the plaintiff relies.

Under the code, there is no question of the power of a judge at chambers to extend the time to demur as well as to answer. By section 405 the time within which any proceeding in the action must be had after its commencement, except the time within which an appeal must be taken, may be enlarged by a justice of the Supreme Court or a county judge. An enlargement of the time to answer is, therefore, under our present practice, an extension of the time to demur.

The word answer is sometimes used in the code as including a demurrer. By section 246, judgment may be had, if the defendant fail to answer the complaint; and again, in the same section, to entitle the plaintiff to judgment, he must file proof that no answer has been receiv ed. He is not to say anything in his affidavit about a demurrer, but it will not be contended that he may take judgment, if a demurrer has been served.

This motion must be denied, but the question being a new one, no costs are allowed.