Livingston v. Livingston

4 Paige Ch. 111, 1833 N.Y. LEXIS 150, 1833 N.Y. Misc. LEXIS 74

Opinion

The Chancellor

said the provisions of the thirty-ninth rule were not applicable to the case of an answer to which the complainant could not except for insufficiency. That by the English practice, as sanctioned by modern decisions, the reference of an answer for impertinence was sufficient cause to be shown in answer to an application to dissolve the common injunction. But that arose from the fact that no exceptions for insufficiency could be filed until after the exceptions for impertinence were disposed of. (Hunt v. Thomas, 2 Anst. Rep. 591. Fisher v. Bailey, 12 Vez. 19.) That the reasons upon which the English practice had been adopted did not apply to the case of an answer to which the complainant had waived his right to except for insufficiency. That by the practice in this court, exceptions for scandal or impertinence and exceptions for insufficiency were to be taken at the same time and in the same manner. If, therefore, the whole equity of the bill was denied, it was no answer to the application to dissolve the injunction, that the defendant had gone further and incorporated in his pleading other matters, which were scandalous or otherwise irrelevant.

The motion was then disposed of on its merits.