Davis v. Bingham

32 Misc. 777, 66 N.Y.S. 489

Opinion

Per Curiam.

The oral pleadings in the Municipal Court upon the removal of the action to this court became the pleadings in this court. The order of this court simply required that the oral pleadings should be reduced to writing. This required the parties to do just what the order read. The issues made and pleadings could not be changed, except by this court; therefore, the defendants should have answered here, as they did in the Municipal Court, and should not have demurred. The complaint should have been also conformed to the oral pleading in the Municipal Court. If otherwise, objection should have been made by defendants by answer and not by demurrer.

Order sustained, with costs.

Present: Fitzsimons, Ch. J., and Hascall, J.

Order sustained, with costs.