Johnston v. Bennett

5 Abb. Pr. 331

• Court: The Superior Court of New York City
• Decided: December 15, 1868
• Status: Published

Opinion

Jones, J.

—The principle laid down in Haight v. Hayt (19 N. Y., 464), controls this case ; and under it the demurrer must be overruled. The case of Haight v. Hayt proceeds, so far as the point involved in the case at bar is concerned, upon sections 1 and 2 of article 1 of title 3 of chapter 8 of part 3 of the revised statutes (See opinion of Grover, J., at p. 467, and of Denio, J., at p. 474).

When Zabriskie v. Smith (13 N. Y., 322) was decided, these provisions of the statute do not appear to have been called to the attention of the learned judge (Debio) who delivered the opinion.

Demurrer overruled with costs, with leave to defendants to withdraw demurrer .and answer within twenty days ; if not, then judgment for plaintiffs with costs.