19 Wend. 97
Decided February 15, 1838
New York Supreme Court · decided 1838-02-15
The defendant put in a general demurrer to the declaration. The plaintiff’s attorney supposing, that under the 88th general rule of this court, the defendant should have specified the objections in matters of substance as well as form upon which he intended to rely, treated the demurrer as a nullity, entered the defendant’s default for not pleading, and gave notice of assessment. The defendant moved to set aside the default.
Cited by 1 later decisions — most recently June 1828
Good law ✅— No negative treatment on recordhow we know
Decided 1838-02-15
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¶1By the Court,
¶2The sole object of the 88th rule was to regulate the costs of amendment after demurrer. We cannot look into the pleadings, on a motion of this kind, in a case circumstanced like the present. If the plaintiff’s attorney considered the demurrer frivolous, he should have moved for judgment on that ground.
¶3Motion granted.