Mosselman v. Caen , 1861 N.Y. App. Div. LEXIS 105 ( 1861 )

Clerke, P. J.

I concur, except that I do not think the defendant could raise the question at the trial, after having failed to demur. If he demurred, it should be under sub. 2 of sec. 144 of the code; but sec. 148 says, if the objection is not taken by demurrer, (or answer,) the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, (under sub. 1 of § 144,) and the objection that the complaint does not state facts sufficient to constitute a cause of action (under sub. 6 of § 144.)

Judgment affirmed, with costs.

Clerke, Allen and Suther land, Justices.]