76 A.D. 409 | N.Y. App. Div. | 1902
This action was brought to recover on a promissory note of $2,000¿ made by defendant July 1, 1899, to the Forest Land and Mill Company, and thereafter transferred to the plaintiff, and was commenced August 23, 1901.. The defendant answered on August 23, 1901, interposing as a defense that the plaintiff and others, in the sale of a large tract of forest land in the Adirondacks, practiced a. fraud upon the defendant; that the note in question was given in part payment of the said land and was transferred to the plaintiff, with full knowledge of the alleged fraud, he being a party to the transaction. The plaintiff, treating the answer as a counterclaim,: by way of new matter, served a reply on September 11, 1901. Both parties noticed the case for trial for the Kings County Trial Term commencing October 7, 1901, and on the 28th of May, 1902, the motion on which the order appealed from was granted was made, returnable on the tenth of June.
The plaintiff’s complaint sets out the usual facts necessary to support an action upon a promissory note. The answer makes neither a general nor specific denial of any of the material facts alleged in the complaint, nor does it, as in the case of Staten Island M. R. R. Co. v. Hinchliffe (170 N. Y. 473, 481), set out any facts which
The motion of the plaintiff, resulting in the order appealed from, was for judgment upon the pleadings upon the ground that the answer did not deny any of the allegations of the complaint nor contain any defense valid at law, and was, accordingly, frivolous. The motion was granted, and, if we understand the law, the plaintiff was entitled to judgment. The relief, on account of a frivolous answer, is an application for judgment under section 537 of the Code of Civil Procedure. The court can afford this relief only where the whole answer is frivolous, the theory being that there is in effect no answer at all, and that, therefore, the plaintiff should have judgment as for a failure to answer. (Reese v. Walworth, 61 App. Div. 64.) The fact that the plaintiff, for prudential reasons, had put in a reply, does not deprive him of his right to move for judgment where the answer is frivolous (Place v. Bleyl, 45 App. Div. 17, 19, and authorities there cited), and the only question to be determined is whether the pleading, taken as a whole, is frivolous. A frivolous answer denies no material allegation of the complaint and sets up no defense. (Hull v. Smith, 8 How. Pr. 149; 1 Duer, 649.) The answer in the case at bar, as we have already pointed out, does not controvert any fact alleged in the complaint; it does not pretend that there has been a complete failure of consideration by reason of the alleged fraud, nor does it ask for any affirmative
If the defendant has been defrauded, it may- proceed in a court of equity to set aside the transaction by returning the property to the parties of whom it was purchased, or it may retain the property and bring an action to recover the damages which it has sustained, but it cannot retain the property purchased with the notes which it has given and then defeat all recovery upon them by alleging facts which, at the best, show only a. partial failure of consideration.
The order appealed from should be affirmed, with costs.
All concurred; Bartlett and Hirschberq-, JJ., in result.
Order affirmed, with ten dollars costs and disbursements.