5 Abb. Pr. 453 | The Superior Court of New York City | 1857
—The plaintiff moves for judgment, on the ground that the answer of the defendant is frivolous. The answer contains two alleged defences. First. The defendant, by a form of denial allowed by the very terms of the Code, puts in issue the allegation in the complaint, that the phyee of the note in suit endorsed the same to the plaintiffs. Second. The defendant alleges that before the commencement of this action, one of the plaintiffs commenced an action for the same cause against the defendant in the State of Connecticut, by process of attachment, under which attachment sufficient property has been attached to satisfy the debt, with costs and expenses.
The pendency of such an action is no defence, and if there were no denial in the answer, the motion should be granted.
An answer may be false, and under some circumstances may be shown on motion to be so palpably false that the court will strike it out. But a false plea and a frivolous plea are quite unlike.
A frivolous plea is one which, if the facts alleged are true, the court can clearly see constitutes no defence.
The plaintiff, so far as he relies upon the want of good faith in the defendant’s denial of the endorsement, and the plain truth of his own averment of such endorsement, has mistaken his remedy. It is not the motive with which an answer is put in, or its truth or falsity, that is the test, on a motion for judgment on the ground of its frivolousness. If it is a good defence on its face, the motion must be denied.
The present motion cannot therefore be granted. But as the second defence is, I think, palpably frivolous, it ought not to encumber the record, and under the prayer for other relief, it may be struck out. Costs of motion, $10, to abide the event of the suit.
