Anonymous.

NEW YORK SPECIAL TERM.

SEPTEMBER 30, 1848.

Before EDMONDS, Justice.

ANONYMOUS.

On a motion for judgment by reason of the frivolousness of a demurrer to a complaint:

Held, that the Code is constitutional.

Mr. Gould, for defendant, said that in his absence during the summer vacation, similar demurrers had been put in to several complaints which he had filed, and, as he had understood, on the advice of eminent counsel. He had therefore interposed this, in order to have the question settled. The ground taken was, that the Code, under which the complaint was filed, was unconstitutional.

Edmonds, J.: In what respect is the Code alleged to be unconstitutional?

Gould: The commissioners exceeded the authority conferred upon them by the statute appointing them.

Edmonds, J.: That can be of no consequence. The only question is, whether the legislature exceeded its authority.

Gould: It is alleged that it did so in abolishing the distinction between law and equity, while the Constitution expressly recognized that distinction.

Edmonds, J.: The Code abolishes the distinction only as to form; only as to the mere practice. The great principles of law and equity, as they existed in our jurisprudence at the adoption of our Constitution, are untouched. Besides, the

Desmond and another v. Wolf and others.

power of altering the common law, in any respect, is expressly conferred upon the legislature by the Constitution.

As at present advised I must overrule the demurrer as frivolous.

NEW YORK SPECIAL TERM.

SEPTEMBER, 1848.

Before EDMONDS, Justice.

DESMOND AND ANOTHER V. WOLF AND OTHERS.

A party complaining of any proceeding in a cause, must embody all his objections in one motion. The court will not permit him to make sepa rate motions for each objection he may have to make.

THIS was a suit in equity, in which the defendants, after obtaining an extension of their time to answer, by consent of the plaintiffs' solicitor, had put in a demurrer to the bill. The plaintiffs moved to set aside the demurrer as irregular; that motion was denied. They now moved to take the demurrer off the file, for frivolousness.

A. Dickson, for the plaintiffs.

Sandford, for the defendant.

Edmonds, J.: This motion must be denied. The objection now moved upon existed at the time the motion was made to set aside the demurrer as irregular, and might have been made then; but the parties, having failed in that motion, now seek to attack the demurrer on another ground. Parties cannot be permitted to split up their objections into several motions.

Diblee v. Mason.

They must take all their objections at once. If this splitting of grounds of objection were once permitted, there would be no end to the number of motions.

Motion denied.

SUPREME COURT-SPECIAL TERM.

SEPTEMBER, 1848.

Before EDMONDS, Justice.

DIBLEE V. MASON.

In an action to recover the price of goods sold and delivered, and work done, the summons stated that the plaintiff would apply to the court, on a specified day, for the relief demanded by the complaint. On motion for judgment for want of an answer,

Held, That the summons was in the wrong form, and that the motion for judgment must be denied.

That the mistake in the form of the summons was not within section 145 of the Code.

That section 145 of the Code applies only to mistakes in "pleading,” and not to "process."

That although the court may have power to amend the process, it could only be done on a motion therefor.

A. Dickerson moved on an affidavit of service of summons, and copy complaint, and of no answer having been received for judgment in this action.

Morris, for the defendant, opposed the motion, on the ground that it appeared by the complaint that the action was on a contract, and for the recovery of money only, yet that the summons, instead of giving notice that the plaintiff would take judgment for a specified sum, contained a notice that the plaintiff would apply on this day for the relief de

Dickerson v. Beardsley and another.

manded by the complaint. This, he contended, was such an irregularity as precluded the plaintiff from taking judgment.

Dickerson, in reply, contended that the Code was only directory as to the form of the summons, and that the plaintiff had an option to use either form of summons.

Edmonds, J.: This is an action on a contract for goods sold, and work done; the summons does not contain a notice of any specified sum for which judgment would be demanded; but, instead, it contains a notice that the plaintiff will apply to the court on a certain day for the relief demanded in the complaint. This, I think, is irregular, and the motion must be denied, and with costs.

The irregularity in this summons cannot be disregarded under section 145 of the Code, as immaterial, because that section relates to pleading, only, and not to process.

The court may have power to amend the process, but that can only be done on a motion therefor.

Motion denied with costs.

SUPREME COURT-SPECIAL TERM.

SEPTEMBER, 1848.

Before EDMONDS, Justice.

DICKERSON V. BEARDSLEY AND ANOTHER.

Time to answer after amendment.

After service of summons and complaint, plaintiff served an amended complaint, and, at the end of twenty days from the time of snch service, signed judgment. On motion to set aside the judgment, held, that the defendant had twenty days from the service of the amended complaint to answer or demur thereto.

AFTER service of the copy of complaint in this action, and before the defendants' time to answer expired, and before any

Dickerson v. Beardsley and another.

answer had been put in, the plaintiff served an amended complaint. At the expiration of the period of twenty days from the time of the service of the first copy of the complaint, the defendants not having put in any answer, the plaintiff signed judgment; a motion was now made to set that judgment aside.

too soon.

J. A. Millard, for the motion. The judgment was signed Section 125 of Code provides for the case of an amended complaint, and gives the defendant twenty days to answer after the amendment.

soon.

H. Brewster, contra. The judgment was not signed too Section 125 of the Code does not apply to this case. Section 125 of the Code is under the chapter of the Code specially relating to demurrers, and must be read in conjunction with section 124. It only applies in cases where there has been a demurrer to the complaint, and the plaintiff amends after the demurrer. In this case there was no demurrer. Section 148 is the section of the Code applicable to this case; it provides that the amendment may be made "without prejudice to the proceedings already had." The proceedings already had in this case, were the service of the summons and the copy complaint, and the service of the amended complaint did not prejudice the plaintiff's right to an answer within twenty days of the service of the summons. The time of the service of the complaint is immaterial, because the defendant is to answer within twenty days of the service of the summons, irrespective of the time of serving the complaint. (Section 107.) It is not necessary to serve a fresh summons with an amended complaint, and none was served; therefore, the summons served with the complaint was still existing, and its requirements should have been fulfilled by the defendants. The defendants might have obtained further time to answer.

Edmonds, J.: In this case the complaint was amended after service, and before the expiration of twenty days from