Burke v. New York, New Haven & Hartford Railroad ( 1891 )

The Court held (per Curiam) as stated in the headnote, and affirmed the order upon the opinion of Freedman, J., at special term, which was as follows :

“If the objection sought to be reserved by the answer, and which is therein set forth before the statement of the first defence, does not consist of issuable matter, it ought to be stricken out. o

“ If it is intended to be issuable matter and relied upon as a defence, it should be pleaded as such and stated and numbered separately, so that the plaintiff, if he shall see fit, may test its sufficiency by motion or demurrer.

“Upon due consideration of the pleadings I have come to the conclusion that the motion to strike out should be granted, with $10 costs, unless the defendant within twenty days amend the answer by specifically pleading the matter referred to as a defence and by separately stating and numbering such defence and pay the said costs.”