9 N.Y.S. 614 | N.Y. Sup. Ct. | 1890
Lead Opinion
This order should be affirmed upon the authority of Smith v. Laird, 44 Hun, 530, and Wise v. Gessner, 47 Hun, 306. I desire, however, as I did not take part in these decisions, to express my full concurrence in the views therein expressed. The previous authorities are there sufficiently analyzed; and I find no general term case later than Wise v. Gessner taking a
I'have read the report of Cooper v. Jones with extreme care, and I find that the only question there presented was whether, after a demurrer to an answer, the defendant may serve an amended answer of course, within 20 days. The court held that such an amended answer might be so served, a proposition which admits of no doubt, but which is irrelevant to the precise question under discussion. It would have been quite different if the court had held that, after a demurrer to an answer, the plaintiff might serve a reply of course, within 20 days. The case of White v. Mayor is equally inapplicable. The only question there was whether the plaintiff could amend his complaint more than once, as of course. It is quite clear, therefore, that the learned court, in its refusal to follow Smith v. Laird, was not fortified by the authorities cited any more than it was by the formula that “a demurrer is one form of answer. ” Looking at the question upon principle, it seems to us a somewhat whimsical misapplication of language to speak of amending a demurrer by an answer or of amending an answer by a demurrer. One can be substituted for the other, but cannot be amended into the other. When an issue, whether of fact or law, is once raised, it must, as such, be disposed of. If you have demurred, you may amend your demurrer once. If you have answered, you may amend your answer once. But you cannot, by amendment, change the legal status of the issue. In other words, you cannot, by amendment, turn an issue of law into an issue of fact, or an issue of fact into an issue of law. That can only be done by withdrawing the one pleading and substituting the other. And this is the ordinary and well-established practice. Bor instance, when a demurrer to a complaint is overruled, after argument, the court usually gives the defendant leave, not to amend, but to with
Concurrence Opinion
I concur in the foregoing opinion of Mr. Justice Barrett. Sections 488-499, inclusive, Code Civil Proc., distinctly recognize that a demurrer and answer are different pleadings. They expressly provide that a demurrer shall perform an office which shall not be and cannot be done by answer. Sections 968-966 further show that an answer and demurrer are distinct and different pleadings, as they raise issues of an entirely different nature.
Bartlett, J., concurs.