6 How. Pr. 21 | N.Y. Sup. Ct. | 1851
This is a motion for judgment under the 247th section of the Code, upon a frivolous demurrer; and the counsel for the defendant objects.
1st. That the motion can not be entertained under the notice. The notice is of an application for an order that the demurrer be stricken out as irregular and frivolous, with costs of the motion. Nothing is said of an application for judgment on the demurrer, or for judgment in the cause; nor is there any prayer for general relief. When a party moves for specific relief, and does not pray for any alternate or general relief, and the motion for specific relief is not granted, the application is denied (4 Paige, 537; 4 id. 229; 5 id, 517; 1 Hof. Pr. 45, 49). An order is a direction of a court or judge in writing, not included in a judgment (§ 400). A judgment is a final determination of the rights of the parties in the action (§ 245). Now an application for an order that the demurrer be stricken out as “ irregular and frivolous,” is not a motion for judgment on the demurrer or in the action, under the 247th section of the Code. The notice seems rather to have been drawn with reference to relief under the 152d section, which provides for striking out sham answers and defences. That, however, is a motion to be made before the court; while relief under the 247th section may be obtained before a judge on five days notice.
2d. But granting that the motion, instead of being for an order that the demurrer be stricken out as “ irregular and frivolous,” had been for judgment on the demurrer on account of its frivolousness, I am still of opinion that it should be denied. To warrant a judgment under the 247th section, the case should be entirely clear; palpable on the statement of the facts, and requiring no argument to make it more apparent. It was to prevent the effect of a delay until a regular term or circuit, that this section was framed. Under the former practice, you might move for judgment on a frivolous demurrer, or on account of the frivo
In order to determine whether the demurrer is so clearly frivolous as to authorize this summary judgment, it will be necessary to examine the previous pleadings. The action was on a policy of insurance. The answer set forth, as one distinct ground of defence, that the policy was, by its terms, made subject to certain by-laws and conditions annexed to the policy; one of which required every applicant to state in his application the amount of any incumbrance on the property; and that the applicant in his application stated that there was no incumbrance on the same; whereas there was a mortgage on the premises, on which was due of about the amount of five hundred and twenty-five dollars. To this defence the plaintiff replied, that at the time of the application for insurance, the applicant stated to the agent who took the application, that there was a mortgage on the premises of about five hundred and twenty-five dollars,, which was true, as he was informed and believed; that a printed paper was handed to the applicant, the blanks of which were filled up by the agent; and if said paper contained any thing different from the foregoing statement, as to incumbrances, the same was improperly and wrongfully obtained from the applicant by said agent; and that, as the plaintiff is informed and believes, the applicant did not falsely state in his said application that said property was not incumbered.
To this replication the defendant demurred for insufficiency, because, 1. It attempted to avoid the facts pleaded, without confessing those facts.
2. That it states evidence and not facts.
3. That it is argumentative and not positive.
4. That it does not set up facts sufficient to avoid the defence stated in the answer.
5. That it is insufficient in as much as it is uncertain.
Again, it will be a question, on the argument, whether, taking the reply all together, it can be said to deny and put in issue, properly under the Code, the allegation in the answer, that the applicant stated in the application, that there was no incumbrance on the property. Another question may be whether the hypothetical statement, in the reply, concerning the “ printed paper,” is to be held sufficient, or whether the reply can be held to refer by that designation to the application; or whether the epithets “ improperly and wrongfully” will be held sufficiently certain and descriptive of the mode of obtaining the paper in question. Do they indicate force, or duress, or fraud, as the means (and which of these means) of obtaining the paper? The
The motion must be denied.