demurrer defense in New York

1926In Golden v. Health Department ( 21 App. Div. 420 ) there was a demurrer to a defense of adequate remedy at law.

1912In Golden v. Health Department ( 21 App. Div. 420 ) there was a demurrer to a defense of adequate remedy at law.

1904(Sayles v. Wooden, 6 How.

1904Sayles v. Wooden, 6 How.

1953By the express command of the statute a judgment sustaining a demurrer is a bar to a further prosecution for the same offense unless such an order is made. * 6 “ No order to re-submit is required, however, unless the defendant has been put in jeopardy under a former indictment.” The same question arose in People v. Luckman ( 164 Misc. 230 ).

1923(Osborn v. Cardeza, 208 N. Y. 131, 136 .) .

1922May 10, 1921; Guttag v. Shatzkin, 194 App. Div. 509 .) In Farnham Realty Corp. v. Liberman ( 197 App. Div. 947 ) this court affirmed an order overruling a demurrer to a defense interposed in an action like this, where damages for the trespass were alleged on the basis of the rent reserved by the landlord by a lease of the premises to another after the expiration of the term of the tenant in possession, which rental was alleged to be the fair rental value of the premises.

1922May 10, 1921; Guttag v. Shatzkin, 194 App. Div. 509 .) In Farnham Realty Corp. v. Liberman ( 197 App. Div. 947 ) this court affirmed an order overruling a demurrer to a defense interposed in an action like this, where damages for the trespass were alleged on the basis of the rent reserved by the landlord by a lease of the premises to another after the expiration of the term of the tenant in possession, which rental was alleged to be the fair rental value of the premises.

1920(Alsing Co. v. New England Quartz Co., 66 App. Div. 473 .) The defendant relies, however, upon its challenge to the replies based upon section 181 of the Tax Law of the State, which provides that upon failure to pay the tax therein prescribed no action shall be maintained “ or recovery had ” in any of the courts of this State by any such foreign corporation, after thirteen months from the beginning of business within this State.

1920(Fox v. Fox, 128 App. Div. 876 ; Henn v. City of Mount Vernon , 190 id. 533 .) This is emphasized by the provision of section 1349 that an appeal may be taken to the Appellate Division of the Supreme Court “ from an interlocutory judgment rendered at a Special Term or Trial Term of the Supreme Court, or entered upon the report of a referee.” In Cambridge Valley Nat.

1920(Fox v. Fox, 128 App. Div. 876 ; Henn v. City of Mount Vernon , 190 id. 533 .) This is emphasized by the provision of section 1349 that an appeal may be taken to the Appellate Division of the Supreme Court “ from an interlocutory judgment rendered at a Special Term or Trial Term of the Supreme Court, or entered upon the report of a referee.” In Cambridge Valley Nat.

1918(Davidson v. Village of White Plains, 197 N. Y. 266 ; Van Dolsen v. Board of Education, 162 id. 446.

1917(Douglas v. Coonley, 156 N. Y. 521, 528 ; Empire Trust Co. v. Magee, 117 App. Div. 34 ; Mendelson v. Margulies, 157 id. 666, 670; Ivy Courts Realty Co. v. Morton, 73 id. 335, 338; De Voe v. Lutz, 133 id. 356, 361; Smith v. Coe, 170 N. Y. 162, 167 ; Pullen v. Seaboard Trading Co., 165 App. Div. 117, 119 ; Fleischmann v. Stern, 90 N. Y. 110 .) It follows, therefore, that it must be assumed that this contract was fully performed and thereby became fully executed before there was any attempt by the defendant to rescind it.

1917(Douglas v. Coonley, 156 N. Y. 521, 528 ; Empire Trust Co. v. Magee, 117 App. Div. 34 ; Mendelson v. Margulies, 157 id. 666, 670; Ivy Courts Realty Co. v. Morton, 73 id. 335, 338; De Voe v. Lutz, 133 id. 356, 361; Smith v. Coe, 170 N. Y. 162, 167 ; Pullen v. Seaboard Trading Co., 165 App. Div. 117, 119 ; Fleischmann v. Stern, 90 N. Y. 110 .) It follows, therefore, that it must be assumed that this contract was fully performed and thereby became fully executed before there was any attempt by the defendant to rescind it.

1917(Douglas v. Coonley, 156 N. Y. 521, 528 ; Empire Trust Co. v. Magee, 117 App. Div. 34 ; Mendelson v. Margulies, 157 id. 666, 670; Ivy Courts Realty Co. v. Morton, 73 id. 335, 338; De Voe v. Lutz, 133 id. 356, 361; Smith v. Coe, 170 N. Y. 162, 167 ; Pullen v. Seaboard Trading Co., 165 App. Div. 117, 119 ; Fleischmann v. Stern, 90 N. Y. 110 .) It follows, therefore, that it must be assumed that this contract was fully performed and thereby became fully executed before there was any attempt by the defendant to rescind it.

1917(Douglas v. Coonley, 156 N. Y. 521, 528 ; Empire Trust Co. v. Magee, 117 App. Div. 34 ; Mendelson v. Margulies, 157 id. 666, 670; Ivy Courts Realty Co. v. Morton, 73 id. 335, 338; De Voe v. Lutz, 133 id. 356, 361; Smith v. Coe, 170 N. Y. 162, 167 ; Pullen v. Seaboard Trading Co., 165 App. Div. 117, 119 ; Fleischmann v. Stern, 90 N. Y. 110 .) It follows, therefore, that it must be assumed that this contract was fully performed and thereby became fully executed before there was any attempt by the defendant to rescind it.

1917(Douglas v. Coonley, 156 N. Y. 521, 528 ; Empire Trust Co. v. Magee, 117 App. Div. 34 ; Mendelson v. Margulies, 157 id. 666, 670; Ivy Courts Realty Co. v. Morton, 73 id. 335, 338; De Voe v. Lutz, 133 id. 356, 361; Smith v. Coe, 170 N. Y. 162, 167 ; Pullen v. Seaboard Trading Co., 165 App. Div. 117, 119 ; Fleischmann v. Stern, 90 N. Y. 110 .) It follows, therefore, that it must be assumed that this contract was fully performed and thereby became fully executed before there was any attempt by the defendant to rescind it.

1913The allegations of fraud, as set forth in the complaint, have already been considered and passed upon by this court on an appeal from an interlocutory judgment overruling a demurrer to a defense, (Potts v. Lambie, 138 App. Div. 144 .) At the trial it appeared that in November, 1903, the defendant was the president, principal stockholder and general manager of the Export and Import Company; that the plaintiff had applied for a position with the company and had several conferences with the defendant in reference thereto; that the defendant informed him it was his practice to require the principa

1907The rule is well stated in the case of Anderson Building, etc., Co. v. Thompson, 88 Ind. 405 , as follows: “A cross complaint or counterclaim is not a defense to the plaintiff’s action; but it is a cross action by the defendant against the plaintiff; and it must state facts sufficient to constitute a cause of action; or it must be held bad on a demurrer thereto, for want of facts, whether the original complaint be good or bad.

1905In Thompson v. Halbert ( 109 N. Y. 329 ) the Special Term sustained the demurrer to a defense set up in the answer, and the General Term reversed the interlocutory judgment. ( 40 Hun, 536 .) On an appeal to the Court of Appeals the judgment of the General Term was reversed and that of the Special Term affirmed, Judge Finch saying: “We are of the opinion that the reversal was erroneous. ■ The facts stated in the answer were not pleaded as a partial defense or in mitigation of damages.

1905(Bellinger v. Craigue, 31 Barb. 534, 537 .) The learned court at Special Term, therefore, was-, right in overruling the demurrer to this defense irrespective of any-question as to whether the mere execution and delivery of a contract here amounted to doing business, in the State of New York. (2) The second defense to the fifth cause of action is substantially the same as the defense already considered, except that it omits any averment as to the jurisdiction within which the contract was executed and delivered.

1904Masterson v. Townshend, 123 N. Y. 458 ; Farrar v. Lee, 10 App. Div. 130 .

1904Masterson v. Townshend, 123 N. Y. 458 ; Farrar v. Lee, 10 App. Div. 130 .

1904Co. v. Hinchliffe, 170 N. Y. 473 , a demurrer to a defense setting up the Statute of Limitations was sustained.

1902Of the other cases cited by the defendant in support of the argument that the justification of any one charge will make the defense sufficient, nearly all are instances of answers in which at least one charge was well justified; but the present situation resembles that in another case cited by him, in which the court said, in sustaining a demurrer to a defense: “ But we are unable to find a single independent libelous charge complained of in the complaint which is fully justified in the answer.” Baldwin v. Genung, 70 App. Div. 271, 272 .

1896Ordinarily, it is true, denials are no part of a counterclaim (Foley v. Bank, 33 N. Y.

1894De Witt v. Brill, 6 Misc.

1893Bank v. Bonney, 101 N. Y. 173 , 4 N. E.

1887People v. Whitwell, 62 How.

1882As it is likely that on the trial of the action the question may again arise whether it was necessary that there should be a demand in order to set the statute running, we will say we are clearly of opinion that it was not (Herrick v. Wolverton, 41 N. Y. 581 , 596 ; Hirst v. Brooks, 50 Barb. 334 ; Wheeler v. Warner, 47 N. Y. 519 ).

1882As it is likely that on the trial of the action the question may again arise whether it was necessary that there should be a demand in order to set the statute running, we will say we are clearly of opinion that it was not (Herrick v. Wolverton, 41 N. Y. 581 , 596 ; Hirst v. Brooks, 50 Barb. 334 ; Wheeler v. Warner, 47 N. Y. 519 ).

1882As it is likely that on the trial of the action the question may again arise whether it was necessary that there should be a demand in order to set the statute running, we will say we are clearly of opinion that it was not (Herrick v. Wolverton, 41 N. Y. 581 , 596 ; Hirst v. Brooks, 50 Barb. 334 ; Wheeler v. Warner, 47 N. Y. 519 ).