Rogers v. Burk

10 Johns. 400

Opinion

Per Curiam.

The replication must be taken, upon special demurrer, to be defective. It traverses the time stated in the plea in which the frame was erected, whereas the day was not material.' It should, also, have been confined to a traverse of the allegation of performance by the defendant. By traversing the tender stated by the defendant, and by introducing averments of the performance of the covenant on the part of the defendant, (which were wholly unnecessary^ ás they were contained in the declaration,) the replication was loaded with multifarious and unnecessary matter, and put in issue distinct matters of fact. There must be judgment for the' defendant, with leave to the plaintiff to amend on the usual terms.

Judgment for the defendant