14 How. Pr. 406 | N.Y. Sup. Ct. | 1857
The provision of § 152 of the Code, for striking out sham answers, confers no new power, but is simply declaratory of a power which the court before possessed. It is a power to prevent the perversion and abuse of the forms of presenting defences, designed to promote and secure justice, to the mere purpose of embarrassment, expense and delay, and consequent injustice. This power is essential to the character of the court as a tribunal of justice, the protection of its suitors from wrong, and an efficient, speedy and just administration of the laws ; add is inherent in the court without any special legislation.
Great care should be used by the court in the exercise of this power, and no answer should be stricken out as sham, unless it appears beyond question that the matters of it are destitute of truth, except perhaps when they are so grossly frivolous as to make it palpably apparent that the answer was put in in bad faith, and is a fraud upon the law.
Under the system of pleading and practice introduced by the Code, which professes at least to regard the truth more than the previous system did, answers merely denying the complaint, as well as those setting up new matter, should be held to be
The temptation to interpose sham answers, arising from the cost of litigation being very light, the delay of judgment which may be produced, and the supposed importance or desirableness of retaining money which is the subject of the action, is very great, and justice clearly requires that the court should go the length above indicated in applying a corrective to the evil of such answers.
In the present case the complaint is on notes, and the answer is that they were discounted under a usurious agreement, stating it particularly. The affidavits on the part of the plaintiffs, and the letters annexed, show' that the notes were discounted in pursuance of requests by letters, which letters do not, in the remotest degree, tend to prove any such agreement as is alleged ip the answmrs. And the affidavits in opposition to the motion present no special facts to sustain the answer, except that the president of the bank, which is located at Rochester, some five or six months prior to the discount of any of the notes, called at the office of some of the defendants in Buffalo, and it was there arranged, the president acting for the plaintiffs, in substance, that the plaintiffs would discount for the defendants such paper as that in question. Assuming this statement to be true, and viewing it in the most favorable light for the defendants,
The conclusion is irresistible, to my mind, that the answer in this case is a sham answer, and I must therefore grant the motion to strike it out as such, with $10 costs.