88 N.Y. 37 | NY | 1882
We do not think this demurrer was frivolous. To justify an order which so determines, or a judgment founded upon such decision, the demurrer must be not merely without adequate reason, but so clearly and plainly without foundation that the defect appears upon mere inspection, and indicates that its interposition was in bad faith. If any argument is required to show that the demurrer is bad it is not frivolous. (Youngs v.Kent,
It is better to adhere to definite and fixed standards in pleading, and as far as possible encourage so much of system and accuracy as is consistent with the liberal rule of the Code; and thus to require such a plain statement of the facts as will be unambiguous, present issues clearly, enable them to be distinctly and plainly traversed, and avoid legal conclusions as a substitute for a whole group of issuable facts. We think it is the better opinion in this case that the complaint was insufficient, and the demurrer well taken.
The judgment should be reversed, and the motion to strike out the demurrer as frivolous be denied, with costs.
All concur.
Judgment reversed, and ordered accordingly.