Grout v. Cooper

Decided October 15, 1875

New York Supreme Court · decided 1875-10-15

<p>Striking out material allegations from complaint — derrmrrer to such complaint because wanting such allegations — costs.</p> <p>Upon defendant’s motion, certain allegations of tlie complaint were stricken out , as immaterial; subsequently defendant demurred to the complaint on the ground that it was defective in not containing the allegations which had been stricken out, which demurrer was overruled by the Special Term, on the ground that defendant was estopped from alleging the materiality of that which had been stricken out. Held, that the order overruling the demurrer should be reversed,with costs to abide the event, and that plaintiff have leave to amend the complaint.</p>

Decided 1875-10-15

Davis, P. J.:

¶1I concur in the result. I do not'see that the order striking out the averment can have any legal effect upon the demurrer to the complaint. The court cannot go behind the complaint as amended *425by the order striking out certain averments, to determine whether or not, with those averments m, the complaint would not have been good. As demurred to it is bad, and that disposes of the demurrer. But in.fixing terms upon which the plaintiff may ■amend, we may act upon the suggestion of the admitted fact, that the defendant by his motion had reduced the complaint to a demur-rable condition. That fact should induce us to allow an amendment on easy terms, and this, I think, is within our power under the Code.

¶2Order reversed, with costs to abide the event, and with leave to plaintiffs to amend.