Drake v. Interurban Street Railway Co.

88 N.Y.S. 1041

Opinion

FREEDMAN, P. J.

The only point raised by the appellant is that the court erred in overruling a demurrer to the complaint in this action. The summons and a verified complaint were served upon the appellant herein. After several adjournments, and upon one of the days fixed for trial, the defendant’s attorney verbally interposed a demurrer to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the cause was again adjourned. A verified answer had already been interposed by the defendant, and upon the adjourned day the cause proceeded to trial, resulting in á final judgment in favor of the plaintiff, from which judgment the defendant appeals.

There is no ground shown for a_ reversal of the judgment herein. Subdivision 2 of section 145 of chapter 580, p. 1536, Laws 1902 (Municipal Court Act), provides that:

“In all cases where a written complaint, verified or unverified, is served with the summons, a written answer, verified if the complaint be verified, or a written demurrer, must be filed and issue joined upon the return day * * * unless the court further extends the time to answer or demur.”

Upon the return day in this case, issue was joined by filing a verified answer to the verified complaint served with the summons herein. No written demurrer was ever filed.

Judgment affirmed, with costs. All concur.