Reilay v. Thomas

11 How. Pr. 266

• Court: New York Supreme Court
• Decided: October 15, 1854
• Status: Published

Opinion

Roosevelt, Justice.

The plaintiffs’ law, in this case, on the merits, may be perfectly good, but he has not availed himself of it in the proper manner. The Code, unless in very clear cases of the fitness of that mode of procedure, discourages, and for the best of reasons, as shown by Mr. Justice Harris, (9 How. Pr. R. 143,) the usually dilatory pleading by demurrer. To a mere answer—an answer setting up no counter-claim, but merely defensive—such as alleged payment of a note before its transfer—no reply or demurrer is necessary, and none therefore is admissible. The cause, without further written pleadings, should be immediately set down for trial on all the issues: and the same judge, whether they be questions of law or questions of fact, and with or without a jury, as the case may be, disposes, at one time and in one hearing, of the whole controversy.

The plaintiffs’ demurrer, therefore, is irregular, and must be set aside with $10 costs of the motion, to abide the final event.