| New York Court of Common Pleas | Jun 3, 1895
These actions were brought upon respective prom- ' issory notes made by the defendant brewing company, and indorsed by the other defendants. A motion was made in each action for judgment upon the separate answer of the defendant Kroder and the joint answer of his codefendants, as frivolous; and the motion was granted as against defendant Kroder, who has taken these appeals. The pleadings are identical in each action, and may, practically, be considered as upon one appeal.
A point is made by the appellant that the complaint fails to disclose a cause of action as against him, and hence the plaintiff could not be heard to say that the answer was frivolous (Hunger v. Shannon, 61 N.Y. 251" court="NY" date_filed="1874-09-05" href="https://app.midpage.ai/document/munger-v--shannon-3598328?utm_source=webapp" opinion_id="3598328">61 N. Y. 251); this contention being founded upon the wording of the allegation in the complaint with regard to the essential fact of notice of presentment having been given the defendant indorsers, and which reads as follows: “Notice of such presentment, demand, and refusal was thereupon duly given to the defendant.” It is claimed that a fatal defect appears, in that the singular and not the
We think, however, that the question raised by the pleadings should not have been determined adversely to this defendant upon a motion for judgment upon the answers as frivolous. A motion of this character is in its nature summary, may be made upon five days’ notice (Code Civ. Proc. § 537), as was done in this case, and is to be determined in favor of the adverse party, unless a mere inspection of the alleged defective pleading discloses its frivolousness in a degree which would render argument impertinent. Youngs v. Kent, 46 N.Y. 672" court="NY" date_filed="1871-12-12" href="https://app.midpage.ai/document/youngs-v--kent-3631358?utm_source=webapp" opinion_id="3631358">46 N. Y. 672; Cook v. Warren, 88 N.Y. 37" court="NY" date_filed="1882-02-07" href="https://app.midpage.ai/document/cook-v--warren-3593132?utm_source=webapp" opinion_id="3593132">88 N. Y. 37; Bank v. Swift (Sup.) 13 N.Y.S. 526" court="N.Y. Sup. Ct." date_filed="1891-02-11" href="https://app.midpage.ai/document/national-broadway-bank-v-swift-5500328?utm_source=webapp" opinion_id="5500328">13 N. Y. Supp. 526. Argument may demonstrate the insufficiency of the pleading, but that argument is to be presented and considered upon the trial of the issues of law raised by demurrer or upon a motion for judgment when the cause is actually brought to trial upon the facts. Upon examination of the answers before us, we find that there may be some room for question as to whether our disapproval of their sufficiency, merely upon inspection, would not be more hasty than just; and while unhesitating approval might be given to the opinion delivered at considerable length by the learned judge at special term, and to the argument of respondent’s counsel, which is principally founded upon that opinion, we view the discussion noted to have been essential to the conclusion reached, and the result not one to be arrived at upon the motion as instituted. That in such a case a reversal of the order should follow was held in Insurance Co. v. Norris, 74 Hun, 527, 26 N. Y. Supp. 823.
Orders appealed from reversed, with costs and printing disbursements. All concur. '