9 N.Y. 162 | NY | 1861
The practice in regard to frivolous answers, demurrers and replies is regulated by section 247 of the Code, which provides that the party aggrieved may apply, upon a notice of five days, to a judge out of court, for judgment, and that “judgment may be given accordingly.” The frivolous pleading in such cases is not stricken out, but remains upon the record, and becomes a part of the judgment-roll. An appeal may be taken from the judgment in such' cases, from the special to the general term, and from thence to the Court of Appeals. But the manner of dealing with sham and irrelevant answers is entirely different. Section 152 of the Code provides that “sham and irrelevant answers may be stricken out on motion, and upon such terms as the court may in their discretion impose.” In these cases the obnoxious pleading is stricken out, and is no longer part of the record. The suit is left in the same condition as if no answer had been put in; and where the time for answering has expired, when the order to strike out is made, and no terms are imposed by the order, the plaintiff obtains judgment as for want of an answer. In such cases, no appeal will lie from the judgment, it having been obtained through the default of the defendant. An appeal, however, may be brought from the special to the general term from the order to strike out the answer, under subdivision 3 of section 349 of the Code, as the order clearly involves a substantial right. But there seems to be no provision for bringing such an order by appeal to this court. ■ It is clearly not within the second or third subdivisions of section 11 of the Code, as it is not an order which determines the action, nor is it made in a summary proceeding after judgment.' If it could conie here at all, it must be under subdivision 1, upon the
It necessarily follows that no appeal will lie to this court; and the respondent’s motion must therefore be granted, with $10 costs.
Motion granted.