Patten v. Harris

10 Wend. 623

Opinion

By the Court,

Sutherland, J.

It is with great reluctance that we consent to give leave to the party in this case to plead anew; the demurrer may have been interposed in the hope of its proving successful, but it was not put in with the expectation of its deciding the cause upon the merits, and it cannot ' therefore well be said to have been put in in good faith; but there is an affidavit of merits, and unless the defendant be permitted to plead, the whole cause of action will stand confessed upon the record. Under these circumstances, the defendant is permitted to plead anew, on payment of costs.