30 How. Pr. 1 | N.Y. Sup. Ct. | 1865
The 153d section of- the Code provides that the plaintiff may in all cases demur to an answer containing new matter, where upon its face it does not constitute a counter-claim or defence, and that the plaintiff may demur to one or more of such defences or counter-claims, and reply to the residue of the counter-claims. This language is very broad, and allows a demurrer to an answer in all cases, and it has never been doubted by any judge in the state but that it allowed a demurrer to an amended answer. The rule is well settled that the amended pleading takes the place of, and supercedes the original (4 How. Pr. R. 174 ; Van Santvoord’s Pl. 795), and the amended pleading is the' only one before the court (13 Abb. R. 92). I entertain no doubt but that the plaintiff under the present system (as he had under the former), has undoubted right to demur to any amended answer, where either a counter-claim or new matter is pleaded, and which upon its face does not constitute either á counter-claim or defence ; and so far as I know, or have been able to learn, it has never heretofore been doubted. The only remaining question is, whether when one demurrer has been interposed, and the defendant has availed himself of the right to amend of course, and has served his amended answer, to which plaintiff has interposed a demurrer, he has the right of course to serve a second amended answer without obtaining leave of the court. The defendant in this case, after a demurrer to his original answer, served an amended answer, as lie had a right to do, and to which the plaintiff demurred, as he had a right to do, and the defendant thereupon served a second
The defendant now moves the court at special term to set aside this second demurrer, upon the ground, first: that section 153 of the Code does not allow a second demurrer to the answer to be interposed ; and, second: as the defendant served an amended answer after the service of the second demurrer, the plaintiff’s demurrer was removed thereby, and it became his duty to answer by some plea the second amended ansxver; and the defendant also in his notice of motion, asks for an order of the court that the plaintiff be required to receive the second amended answer, and for such" further rule or order, as to the court shall seem proper in the premises. It is very clear to my mind that there can be but one amendment of course, under section 112 of the Code, after a demurrer interposed to the answer. The expression in that section “ or it can be so amended at any time within twenty days after service of the ansxver or demurrer,” undoubtedly refers to the expression in the first line of the section, to wit: “ Any pleading may be once amended by the party of course.” This is the construction which this section has invariably received both from the bench and bar, so far as I have been able to learn, and such certainly has been the practice under it in this district, and the reason why no reported
If the defendants do not accept of these terms as above, then the motions must be regarded as denied, with $10 costs, after the time for amending shall expire.