61 N.Y.S. 371 | N.Y. App. Div. | 1899
The plaintiff moved to overrule the amended answer herein as frivolous and for judgment thereon, and from the order entered granting such motion, the defendant appeals.
The rule to be applied upon motions to strike out a pleading as frivolous has been so many times stated that a restatdment would seem to be unnecessary, and yet the failure of the court below to apply it requires a reference thereto. The distinction between a motion to-strike óut a pleading as frivolous and the question presented on. demurrer must not be lost sight of. One is a summary way of getting rid of the pleading on motion, and the other is the orderly manner of1 proceeding by argument to try the issue of law. On demurrer a pleading after argument and deliberation might be held bad, which, on motion, should not -be stricken out as frivolous. A pleading is not frivolous unless it is indicative of bad faith in the pleader upon bare inspection. If any extended argument is needed
And in Hill v. Warner (39 App. Div. 425) it. was said : “ A frivolous pleading is one which, on inspection, is inherently bad, that is, it contains no defense. While it may be quite apparent the pleading is interposed to gain time, the court cannot say on a bare examination of it that this denial of a material allegation of the complaint is made for that purpose. Issues raised in a permissible manner cannot be disposed of in that summary way.”
To determine whether the answer herein was frivolous necessitates a brief reference to the pleadings. The action was brought to recover a sum alleged to be due the plaintiff in accordance with a judgment entered August 14, 1894, awarding her dower in certain property. As shown by the pleadings, the plaintiff is-the widow of. Alfred Bedlow, who died May 16, 1891, and she claims as dower a share in certain property conveyed by her husband to the defendant,
After alleging the judgment.giving her dower in this property and that the defendant is in possession of it claiming to be sole owner, the complaint states that the .defendant, as owner, leased the said premises on May 1, 1892, for a term of ten years-at a rental of $2,166.66, receiving since February 21, 1894— from which time by the judgment dower was to be computed — the sum of $10,833.40, and, over and above all expenses up to January 30,1899, $9,622.70, for a third of which sum, or $3,207.36, the plaintiff claims judgment should be given her. ■
For a first defense, the answer denies that the judgment referred to adjudged that a sum equal to one-third of the annual rental value of the property described was to be paid the plaintiff by the defendant, and alleges that the judgment fixed no sum after February 21, 1894, but did fix a sum due her up to that date, which sum has been paid her. For a second defense, it is claimed that by the aforesaid judgment, damages of $1,495.38 were awarded, which were paid, the judgment thereby constituting a bar to any further recovery. For a third defense, the answer admits the transfer to the defendant by the plaintiff’s husband of the property mentioned, in which conveyances the plaintiff did not join, and that the defendant has leased the property as alleged, but denies all other allegations relating to -.these facts. For a fourth defense, it is stated that by the judgment awarding the dower in the property, it was adjudged that since May 16, 1891, the children of the plaintiff’s husband were and have been the owners of the premises described, from' which judgment the defendant has an appeal now pending; and for a fifth and last defense it is asserted that no leave .by court has been granted to permit the bringing of this action.
The .appellant’s argument upon this appeal is based upon the contention that the complaint failing to allege ownership in the
The question is thus presented as to whether dower can be asserted against any one but the owner of the property. Whether or not such a contention is sound is unnecessary for us to determine ■on this appeal further than to say that it is not frivolous.
There is the further question raised by the fifth defense that no leave has been granted by the court to bring this eiction pending the other appeal. This, on bare inspection, is not frivolous. The ■defenses denying that the plaintiff has correctly stated what the judgment awarding dower actually decreed, in the absence of the judgment itself, are not frivolous.
It may be that upon demurrer these defenses will be held bad ; but it cannot be said that upon bare inspection they are indicative •of bad faith or are so wanting in substance as to justify their being overruled on motion as frivolous.
The order and judgment thereon should be reversed, with costs to the appellant to abide the event; and the motion denied, with ten
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Judgment and order reversed, With costs to appellant to abide event, and motion denied, with ten dollars costs, but, on. payment of stich costs, with leave to1 plaintiff to'demur-or take Such other action as she may be advised.