Drake v. Interurban Street Railway Co.

Appellate Terms of the Supreme Court of New York

Drake v. Interurban Street Railway Co.

88 N.Y.S. 1041

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 23, 1904

StatusPublished

This text of 88 N.Y.S. 1041 (Drake v. Interurban Street Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Drake v. Interurban Street Railway Co., 88 N.Y.S. 1041 (N.Y. Ct. App. 1904).

Pincite

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.

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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.

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Bluebook (online)

88 N.Y.S. 1041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-interurban-street-railway-co-nyappterm-1904.