President of the Manhattan Co. v. Miller

2 Cai. Cas. 60 | N.Y. Sup. Ct. | 1804

Per Curiam.

There was no occasion for a counsel’s hand; ^'unquestionably the plea is not special. If it was, there is the name of counsel endorsed. Besides, had it been so, it ought not to have been retained. Let the defendant take nothing by his motion, and pay the costs of resisting the application.^(c) ,^[1]

Motion denied with costs.

(c) The general rules are, that where a defendant cannot, without a departure, vary in his rejoinder from the matter set forth in his plea, or when the issue on the replication would be the same as that on the plea; or that on the rejoinder substantially the same as that on the plea; (Patcher v. Sprague, 2 Johns. Rep. 462,) or where there is an affirmative on the one side, and a negative on the other, or where the replication denies the whole matter of fact, which constitutes the plea, or the plea puts in issue matter of fact, as well as matter of record, the conclusion of the plaintiff’s reply should be to the country. See the learned observations of Williams, Serjeant, in Hayman v. Gerrard, I Saund. 103 n. (1)

[1] As to present practice, see Code, § 150. The defendant must demur to the reply, if the reply is objectionable, or move to strike out, &c. See decisions, passim.