69 N.Y.S. 1115 | N.Y. App. Div. | 1901
The order appealed from should be reversed, with ten dollars costs and disbursements.
The ground stated in the order for striking out a portion of the answer as sham or frivolous is quite indefinite. The relief on account of a frivolous answer is an application for judgment under section S3,7 of the Code of Civil Procedure. The court, however, can afford this relief only where the whole answer is frivolous, the theory being that there is in effect no answer at all, and, therefore, the plaintiff should have judgment as for failure to answer. There is no provision for striking out an answer or any part thereof as frivolous. Clearly the order appealed from cannot be sustained as directing judgment on account of a frivolous answer. The answer denied material allegations of the complaint, and alleged payments other than those stated and allowed by the complaint. Such an answer cannot be regarded as frivolous.
. A sham answer or defense may be stricken out by the court upon motion under section 538 of the Code of Civil Procedure. A sham answer is a false answer. The answer here denied, in the form provided by the Code of Civil Procedure, that the bond and mortgage in suit had been assigned to the respondent, and it alleged payments other than those stated and allowed by the complaint. The order was made upon the basis that the allegation as to payments
The order must he reversed, with ten dollars costs and disbursements.
All concurred.
Order appealed from reversed, . with ten dollars costs and disbursements. . . ..