Mann v. Milne

New York Supreme Court

Mann v. Milne

28 N.Y. Sup. Ct. 408

DecidedJune 15, 1880

StatusPublished

This text of 28 N.Y. Sup. Ct. 408 (Mann v. Milne) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mann v. Milne, 28 N.Y. Sup. Ct. 408 (N.Y. Super. Ct. 1880).

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Opinion

So much of the order appealed from as gives defendant leave to amend his answer affirmed ; and so much as strikes out the second and third counts of the answer, with costs, reversed, with leave to [409]*409plaintiff to demur to said counts; no costs of this appeal to either party. Held, that the remedy of the plaintiff, the counts being hypothetical, is by demurrer, and not by motion to strike out. (McCormick v. Pickering, 4 Comst., 276 ; Conger v. Johnston, 2 Den., 96 ; Code of Civ. Pro., §§ 494, 783.)

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So much of the order appealed from as gives defendant leave to amend his answer affirmed ; and so much as strikes out the second and third counts of the answer, with costs, reversed, with leave to [409]*409plaintiff to demur to said counts; no costs of this appeal to either party. Held, that the remedy of the plaintiff, the counts being hypothetical, is by demurrer, and not by motion to strike out. (McCormick v. Pickering, 4 Comst., 276 ; Conger v. Johnston, 2 Den., 96 ; Code of Civ. Pro., §§ 494, 783.)

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28 N.Y. Sup. Ct. 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mann-v-milne-nysupct-1880.

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