10 Abb. Pr. 133


New York Common Pleas;

Special Term, July, 1859.

Pleading.—Waiver of Defect of Parties.

If an objection which ought to be taken by demurrer—e. g., that a defect of parties appears on the face of the complaint—is taken only by an allegation in an answer, it will be deemed to have been waived ; and the allegation may be struck out of the answer on motion.

*134Motion to strike ont part of an answer.

The answer in this action alleged, among other things, that certain third persons, whose interest in the subject-matter of the action appeared from the complaint, were necessary parties to the action, and that a complete determination of the controversy could not be had without their presence.

This part of the answer the plaintiff moved be stricken out.

A. F. Smith, for the motion.

Leonard & Hoffman, opposed.

Hilton, J.

—The part of the defendants’ answer which the plaintiffs ask to have stricken out, is, in substance, a demurrer to the complaint for a defect of parties.

As the alleged defect appears on the face of the complaint, if the defendants desired to avail themselves of it, they should have taken advantage of it by a demurrer. (Code, §§ 143, 147, 148.) Rot having done so, they must, after answer, be deemed to have waived all objections to it.

The allegation, therefore, constitutes no defence to the action, is clearly irrelevant, and should be stricken out.

Motion granted, with costs.

Gassett v. Crocker
10 Abb. Pr. 133

Case Details

Gassett v. Crocker
Decision Date
Jul 1, 1859

10 Abb. Pr. 133

New York



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