Vail v. People

Decided May 15, 1828

New York Supreme Court · decided 1828-05-15

Motion to set aside a default for not joining in demurrer. rphe defendants having made a return to an alternative man- ° , damns, the relators put in five demurrers to various portions of the return, plead four distinct pleas to other portions of the same return, and entered a rule requiring a joinder to the . rri, , r i demurrers, and a replication to the pleas. 1 he deieudants demurred to the demurrers, and on their part put in demurrers to the pleas of the relators.

Good law ✅— No negative treatment on recordhow we know

Decided 1828-05-15

How this case has been cited

Cited by 3 later decisions — most recently September 1900

3 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1By the Court,

Savage, C. J.

¶2The relators had a right to demur to the return made to the alternative mandamus, but they could not both demur and plead. The statute regulating proceedings on writs of mandamus, allows the relator to plead to, or traverse all or any of the material facts contained in the return. A demurrer is a plea within the meaning of the statute, and has so been holden. (16 Johns. R. 61, 65.) The whole return is to be considered as entirety, like a count in a declaration. If the facts set forth cannot be traversed or denied, the relator may demur, but he cannot dissect the return into as many parts as he sees fit, plead to some portions, and demur to the residue. The relators had no right to enter the rule requiring both a joinder and replication ; consequently, the default entered in pursuance thereof was irregular.

¶3Motion granted, with costs.