22 N.Y.S. 626 | N.Y. Sup. Ct. | 1893
An answer having been interposed in this action, the plaintiffs claiming that no defense whatever was set up by such answer, made a motion for judgment upon the pleadings. at a special term of this court It is true that in the notice of .motion the counsel falls into the error, so frequently committed in
The motion seems to have been unwittingly made under section 637 of the Code, which provides that if a demurrer, answer, or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, may apply to the court, or to a judge of the court, for judgment thereupon, and judgment may be given accordingly. The motion in question was a motion upon the pleadings for judgment, manifestly upon the ground that the answer contained no defense, and was therefore frivolous, and this motion was granted. The only difficulty in the disposition of this appeal is the length of the brief which has been submitted by the defendant, which would seem to indicate that he did not think the answer was frivolous, although it manifestly is. The defense set up by the answer seems to have been expressly held to be unavailing in the case of Wright v. Association, 118 N. Y. 237, 23 N. E. Rep. 186, between which case and the one at bar we can see no distinction. The judgment should therefore be affirmed, with costs. All concur.
