4 Edw. Ch. 640 | New York Court of Chancery | 1845
:—I am inclined to think this demurrer is bad in form. The caption does not specify that it is the demurrer to a part and answer to the residue of the bill—but it is general: li The demurrer and answer of the defendants to the bill ?” thus importing to be a demurrer as well as an answer to the whole bill.
It goes on to particularize, however, the parts of the bill to which the demurrer applies ; and this, possibly, may be sufficient to obviate the objection to form in the caption.
But it is bad in other respects. The answer, in various places, is made to override the demurrer in its general language. For instance: “ And this defendant George W. Bruen further answering the said bill of complaint says and where the defendant Bruen sets up his discharge in bankruptcy, in bar to the said bill, &c. he words it “ in bar to the said bill of complaint or so much thereof, &c.” As to the defendant Beck, the part of the bill demurred to charges him with collusion in lending his name, &c.; and yet, at folio 66 of the answer, he denies that he in any way colluded, &c.
But, whether or not the demurrer is bad in form or is overruled by the answer, I am of opinion that the matter demurred to is not an immaterial part of the case made by the bill. It is matter that may properly be alleged and to "which evidence may be adduced, as is clearly established by the supreme court in Cary v. Hotailing and Olmsted v. Hotailing, 1 Hill’s R. 311 and 317.