Townsend v. Wheeler

Decided May 15, 1830

New York Supreme Court · decided 1830-05-15

<p>Where there is a demurrer in a cause, the party whose pleading is demurred to, may notice the cause for argument for the frivolousness of the demurrer, although the party demurring has omitted to make up and serve the demurrer books. On the cause being moved, the court will not hear the objection that the demurrer books have not been made up and served. The remedy of the party demurring was to have moved the court to strike the cause from the calendar.</p>

Decided 1830-05-15

¶1By the Court,

Sutherland, J.

¶2The cause being on the calendar, and moved to be brought on to hearing on notice duly served on the opposite party, the court will not hear an objection to the regularity of the proceedings in that stage of the cause. If irregularly noticed and placed on the calendar, the party objecting has a right to move to strike the cause therefrom, and then all the facts will appear, enabling the court to decide understandingly. The object of the court is to avoid disscussions as to the regularity of the proceedings when a cause is called. The decision in 16 Johnson, 2, proceeds upon this principle, and the case in 6 Cowen, 609, is not at variance with it. The plaintiff is entitled to judgment on reading his notice.