Gassett v. Crocker

10 Abb. Pr. 133

Opinion

Hilton, J.

—The part of the defendants’ answer which the plaintiffs ask to have stricken out, is, in substance, a demurrer to the complaint for a defect of parties.

As the alleged defect appears on the face of the complaint, if the defendants desired to avail themselves of it, they should have taken advantage of it by a demurrer. (Code, §§ 143, 147, 148.) Rot having done so, they must, after answer, be deemed to have waived all objections to it.

The allegation, therefore, constitutes no defence to the action, is clearly irrelevant, and should be stricken out.

Motion granted, with costs.