Brown v. Saratoga Railroad

18 N.Y. 495

• Court: New York Court of Appeals
• Decided: March 15, 1859
• Status: Published

Opinion

Johnson, Ch. J

The defendants demurred to the complaint, and on argument the demurrer was overruled, with liberty to them to withdraw the demurrer and answer in a time limited, on payment of costs. Of this liberty the defendants have availed themselves, and they have thereby abandoned their demurrer as such. They might still, at the trial, have raised such objections as could have been raised at a trial, after answer, if no demurrer had ever been interposed; but if they desired to present the other questions arising on the demurrer they should not have availed themselves of the leave to answer. In that case final judgment would have been rendered on the demurrer, and on appeal from that judgment all the questions raised by the demurrer would have been presented to the appellate court. When a pleading is amended, the original pleading ceases to be a part of the record, because the party pleading, having the power, has elected to make the change. It is upon the same principle that this demurrer, which has been abandoned by the defendants, is no longer a part of the record. It was, therefore, not only unnecessary but improper to insert in the roll the demurrer and the orders thereon, and the motion to strike them out must be granted.

Motion granted.