60 N.Y.S. 330 | N.Y. App. Div. | 1899
The contract which furnishes the basis of this action, and which was made a part of the complaint, was executed by Frey & Rayher.
We are now to see wliat the rule is under the present Code. By section 2935 the" pleadings of the defendant may be an answer or á demurrer. The answer may be a denial or new mátter or both. (§ 2938.) The demurrer is .authorized when the complaint is not sufficiently explicit t-o be understood, or where it does not state facts sufficient to constitute a cause of action. So far as the demurrer is concerned its grounds aré the same as were contained in the old Code (§ 64, subd. 6). Mon-joinder of parties is not made under the present practice a ground of demurrer, and it is beyond dispute that the present pleading was sufficiently explicit to be understood, and stated a cause of action. Mo demurrer could, therefore, be successfully interposed. As there could be no demurrer, and no plea in abatement' was interposed, it would seem that the objection was waived. We should deem this all that is necessary, to be said upon /
It follows from these views that the motion for nonsuit was improperly granted, for which reason the judgment should be reversed.
All concurred.
Judgment reversed and new trial ordered to be had in the same district in which the action was tried, costs to abide the event.