¶1The demurrer on the face of it is frivolous, and appears to have been put in merely for delay. The defendant now applies for a favor, when his conduct entitles him to no more than the summum jus. The motion must be denied.
¶2Rule refused.
¶3 In Miller v. Heath & Heath, 7 Cowen, 101, a party demurring in good faith, this being shown on affidavit, with merits, was permitted to withdraw his demurrer, and plead though the demurrer had been overruled as frivolous. It •was said in Patten v. Harris, 10 Wend. 623, that this court grant this permission with great reluctance. See 2 Gra. Prac. 2d edit. 759, 760.