Musgrave v. Webster

53 How. Pr. 367

• Court: New York Supreme Court
• Decided: November 15, 1876
• Status: Published

Opinion

Vast Vorst, J.

It was stated upon the argument, by the plaintiff’s counsel, that subsequent to the service of the demurrer, the defendant had answered the complaint. This statement was not denied. The only pleading, on the part of the defendant, is either a demurrer or answer. If a defendant demurs to the entire complaint, upon the ground that it does not state facts sufficient to constitute a cause of action, and afterwards answers the complaint, I should consider the answer to be a waiver of the demurrer, and as evidence of the defendant’s intention - to raise on the trial of the • issue of fact the question as to whether the complaint disclosed a cause of action. By answering he does not waive an objection of that character (Code, § 148).

The waiver of the demurrer leaves no issue of law to be determined, and no judgment thereon would be proper.

The hearing is dismissed, but without costs.