From Casetext: Smarter Legal Research

Keepers v. Hartley Co.

Appellate Division of the Supreme Court of New York, First Department
Apr 26, 1912
150 App. Div. 252 (N.Y. App. Div. 1912)

Opinion

April 26, 1912.

M. Conboy, for the motion.

J.A. Garver, opposed.

Present — INGRAHAM, P.J., McLAUGHLIN, CLARKE, SCOTT and DOWLING, JJ.


In this case the defendant demurred to the complaint, and upon motion an order was entered overruling the demurrer and granting the defendant leave to answer. This order was entered on February twenty-third. On February twenty-sixth the defendant served a notice of appeal from the order overruling his demurrer and made several motions to have his time to answer extended, which motions were denied. On April first the defendant, under the leave reserved in the original order, served its answer to the amended complaint, and the case is now at issue.

The service of the answer superseded the demurrer, and the case must now be disposed of upon the complaint and answer. The right to object to the sufficiency of the complaint is reserved until the trial of the issue; but the sufficiency of the complaint cannot be determined upon an appeal from the order entered upon the demurrer after an answer has been interposed. This court can make no order upon this appeal as the pleading upon which it is based has been superseded by the answer. If the defendant had wished to rely upon his objection to the sufficiency of the answer, it should have continued its appeal without serving an answer, depending upon this court to give leave to answer if the order appealed from was affirmed.

The appeal must be dismissed, with ten dollars costs.


Motion granted, with ten dollars costs.


Summaries of

Keepers v. Hartley Co.

Appellate Division of the Supreme Court of New York, First Department
Apr 26, 1912
150 App. Div. 252 (N.Y. App. Div. 1912)
Case details for

Keepers v. Hartley Co.

Case Details

Full title:WILLIAM M. KEEPERS, Respondent, v . M. HARTLEY COMPANY, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 26, 1912

Citations

150 App. Div. 252 (N.Y. App. Div. 1912)
134 N.Y.S. 896

Citing Cases

Revutsky v. Fuller

Prior to section 282, the rule seems to have been the same as that provided in the statute. ( Keepers v.…