Scofield v. Van Syckle

23 How. Pr. 97 | N.Y. Sup. Ct. | 1862

By the court,

Leonard, Justice.

A complaint is not demurrable for defect of parties defendant, at law, unless it appears thereby that some other party for whose non-joinder the demurrer is interposed is living at the time the action is commenced.

The objection in such case must be taken by answer. (Brainard agt. Jones, 11 How. Pr. R., 569; Burgess agt. Abbott, 1 Hill R., 416; S. C. 6 Hill, 135; affirmed in court of errors.)

The order appealed from is affirmed, with costs, and judgment ordered for the plaintiff, unless the defendant answer in twenty days and pay the costs of demurrer and of this appeal.