
    James M. Smith, as Executor, etc., Resp’t, v. George W. Laird et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    Amendment—Demurrer—Answer—Right of defendant to amend demurrer BY ANSWER—CODE OlV". PRO., § 542.
    A defendant has no right to withdraw his demurrer and serve an answer instead, without leave of the court. Code Civ Pro., § 542, does not allow him to do this even though he has not allowed his time to amend of course to pass. Frank v. Bush (2 Civ. Pro. R., 250), and People v. Whit-well (62 How., 383), not followed: Wallace v. Bennett (1 Abb. H. C., 476); S.neea County Bank v. Garlinghouse (4 How., 174); FryY. Bennett (3 Bosw., 200); Burrall v. Moore (5 Duer, 654), and Sands v. Calkins, (30 How., 1), distinguished.
    Appeal from order refusing to compel plaintiff to accept, the answer of the defendant.
    
      S. J. Goldsmith, for app’lts; W. H. Newman, for resp’t.
   Per Curiam.

Section 542 of the Code provides that within twenty days after the pleading or the answer or demurrer thereto is served or at any'time before the period for answering it expires, the pleading may be once amended by the party, of course.. We should not have thought it necessary to do anything more than to call attention to the explicit language of the Code to determine this appeal were it, not for the decisions in the cases of Frank v. Bush (2 Civ. Pro. Rep., 250), and People v. Whitwell, (62 How., 383).

An examination of the opinion of the court in the case of Frank v. Bush shows that the decision was based upon the-supposed authorities of Robertson v. Bennett (1 Abb. N. C., 476); Seneca County Bank v. Garlinghouse (4 How., 174); Fry v. Bennett (3 Bosw., 200); Burrall v. Moore, (5 Duer, 654), and Sands v. Calkins (30 How., 1).

In neither of those cases was the question then before the court adjudicated upon. Ho such question was raised in the case of Robertson v. Bennett, because the amended pleading had been received without objection. In the case of the Seneca County Bank v. Garlinghouse, the question involved was as to the right to serve an amended complaint after the service of an amended answer. In the case of Fry v. Bennett, the only question determined was as to whether the supplemental pleading takes the place of the original pleading; and in Burrall v. Moore, the only question was as to the right of the party to amend an answer. In Sands v. Calkins, it was held that an amended answer takes the place of and supersedes the original answer. In the case of People v. Whitwell, the learned judge based his decision upon the case of Wallace v. Bennett, above referred to. As has been seen, none of the cases cited as authorities for this ruling, adjudicated upon the question involved. Unless there was a well settled line of decisions, establishing the practice, we do not think the plain language of the statute should be disregarded.

The order should be affirmed, with ten dollars costs and disbursements.  