Vietor v. Halstead

14 N.Y.S. 516, 38 N.Y. St. Rep. 407, 60 Hun 578, 1891 N.Y. Misc. LEXIS 2377

Opinion

Lawrence, J.

We are of the opinion that a demurrer is a “defense,” within the meaning of section 3253 of the Code of Civil Procedure, and that it is within the power of the court to grant an allowance. If an authority is needed for this proposition, beyond the sections of the Code relating to demurrers, it will be found in the case of Kingsland v. Mayor, etc., 52 Hun, 99.¹ In that case the court held that, in a controversy submitted upon an agreed state of facts, under section 1279 of the Code of Civil Procedure, the court had power to grant an allowance, and the court said: “The position of the defendant is the same as that of a defendant who demurs to the complaint in an ■ordinary action. He admits the facts as alleged, but denies that they entitle the plaintiff to any relief against- him. * * *” The demurrer is deemed to be a defense, under section 3253. We see no reason for interfering with the discretion,exercised by the court below, and shall therefore affirm the order appealed from, with costs and disbursements. All concur.

1 4 N. Y. Supp. 685.