Carey v. Same

1 Cow. 154

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Curia.

The replication is somewhat informal, but there, is not the least difficulty in seeing which of the pleas it intends to answer.

(a) The special demurrer is, therefore, frivolous, and must.be disregarded, as in fraud of the 9th rule of April term, 1798. But as there is an affidavit of merits, we grant the motion, on the usual terms.

Rule accordingly.

Otherwise, where, in covenant, the defendant pleaded, 1. and 2. performance ; 3. concord; and the plaintiff demurred generally, and said, “ the plea aforesaid is insufficient, &c.” for it is uncertain to which of the three pleas it shall be referred ; so that, as to two pleas pleaded, the defendant remains unanswered. (Middleton v. Cheeseman, Yelv. 65.)