United States Gas Fixture Co. v. Boehmer

Appellate Terms of the Supreme Court of New York

United States Gas Fixture Co. v. Boehmer

69 Misc. 618, 126 N.Y.S. 73

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 15, 1910

StatusPublished

This text of 69 Misc. 618 (United States Gas Fixture Co. v. Boehmer) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States Gas Fixture Co. v. Boehmer, 69 Misc. 618, 126 N.Y.S. 73 (N.Y. Ct. App. 1910).

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Opinion

Guy, J.

This is an action brought in a Municipal Court on a written complaint, to which defendant served a written answer. Plaintiff, on the return day, interposed an oral demurrer to the answer, which demurrer was sustained and judgment rendered in favor of plaintiff. The appeal herein is from said judgment, and from an order sustaining the demurrer. Section 145, subdivision 2, of the Municipal Court Act provides: “ In all cases where a written complaint, verified or unverified, is served with the summons, a written answer, verified if the complaint he verified, or a written demurrer, must be filed and issue joined on the return day.” It is contended by the appellant herein that the intent of this section is that a written demurrer must he interposed by either party to an action when written pleadings have been filed. This contention does not appear to be borne out by further examination of the statute. Section 161 provides that a counterclaim interposed by defendant “may he objected to on motion, or demurred.to as if the counterclaim were an affirmative cause of action, set up [619]*619in a complaint' Section 162 provides that plaintiff may demur to a counterclaim or to a defense consisting of new matter on the ground that it is “-insufficient in law on the face thereof.” In neither of these sections is there a provision that a demurrer to an answer or to new matter set up as a defense therein shall be in writing when the answer is in writing, the only provision of this character being in section 161 that a counterclaim may be demurred to “ as if the counterclaim were an affirmative cause of action set up in a complaint.” The omission from these three sections of any provision 'that all demurrers to written pleadings shall be in writing, or that a demurrer to a written answer shall be in writing, is significant. It could hardly be an oversight, but indicates that the Legislature had in mind that the hlunicipal Court was intended to be a court for the speedy trial of causes, and purposely refrained from furnishing pretexts for unnecessary "delay.

The judgment and order should, therefore, be affirmed, with costs.

Platzek and Gavegan, JJ., concur.

Judgment and order affirmed.

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Guy, J.

This is an action brought in a Municipal Court on a written complaint, to which defendant served a written answer. Plaintiff, on the return day, interposed an oral demurrer to the answer, which demurrer was sustained and judgment rendered in favor of plaintiff. The appeal herein is from said judgment, and from an order sustaining the demurrer. Section 145, subdivision 2, of the Municipal Court Act provides: “ In all cases where a written complaint, verified or unverified, is served with the summons, a written answer, verified if the complaint he verified, or a written demurrer, must be filed and issue joined on the return day.” It is contended by the appellant herein that the intent of this section is that a written demurrer must he interposed by either party to an action when written pleadings have been filed. This contention does not appear to be borne out by further examination of the statute. Section 161 provides that a counterclaim interposed by defendant “may he objected to on motion, or demurred.to as if the counterclaim were an affirmative cause of action, set up [619]*619in a complaint' Section 162 provides that plaintiff may demur to a counterclaim or to a defense consisting of new matter on the ground that it is “-insufficient in law on the face thereof.” In neither of these sections is there a provision that a demurrer to an answer or to new matter set up as a defense therein shall be in writing when the answer is in writing, the only provision of this character being in section 161 that a counterclaim may be demurred to “ as if the counterclaim were an affirmative cause of action set up in a complaint.” The omission from these three sections of any provision 'that all demurrers to written pleadings shall be in writing, or that a demurrer to a written answer shall be in writing, is significant. It could hardly be an oversight, but indicates that the Legislature had in mind that the hlunicipal Court was intended to be a court for the speedy trial of causes, and purposely refrained from furnishing pretexts for unnecessary "delay.

The judgment and order should, therefore, be affirmed, with costs.

Platzek and Gavegan, JJ., concur.

Judgment and order affirmed.

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Bluebook (online)

69 Misc. 618, 126 N.Y.S. 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-gas-fixture-co-v-boehmer-nyappterm-1910.