Mussina v. Stillman — 13 Abb. Pr. 93

Majority

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MUSSINA a. STILLMAN.

Supreme Court, First District ;

General Term, September, 1861.

Headnote

Motion to Stbike out a Pleading.

Where a defendant applied for leave to serve an amended answer, and upon the motion served a copy of his proposed answer, to which no objection was made ; —Held, that the plaintiff was precluded from moving to strike it out as false. Where an answer contains general denials, it will not he stricken out as false.^[1]

Appeal from an order refusing to strike out an answer.

This action was commenced in October, 1856, and issue was joined in March, 1858. In May, 1859, the defendant served a

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copy of proposed amended answer, with notice of a motion for leave to amend, which motion was granted. Several commissions were subsequently issued to take the testimony of several witnesses, and among others the plaintiff. On the return of the various commissions, plaintiff moved on affidavits, and upon the defendant’s testimony, at special term, to strike out the answer as false, sham, and frivolous. The motion was denied, on the ground that the plaintiffs were too late in making their motion, testimony having been taken and the cause reached upon the calenda!’. The plaintiff took the present appeal.

Lorenzo Sherwood, for the plaintiff.

—I. It is the privilege of the plaintiff to move to strike out a false answer at any time before a trial. (Brewster & Bostwick a. Hall, 6 Cow., 34 ; Belden a. Devoe, 12 Wend., 223 .) The law abhors the practice of attempting to try a cause upon a false issue; and every attempt

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to foist upon the court a false answer, when exposed, has met with the sternest rebuke of our courts, both before and after the Code. (See Code, § 152 ; People a. McCumber, 18 N. Y., 315 ; Brewster & Bostwick a. Hall, 6 Cow., 34 ; Belden a. Devoe, 12 Wend., 223 ; Broome County Bank a. Lewis, 18 Ib, 565 ; Darrow a. Miller, 5 How. Pr., 247 ; Thorn, &c. a. N. Y. Central Mills, 10 Ib., 19 ; Manufacturers’ Bank a. Hitchcock, 14 Ib., 406 ; Nichols a. Jones, 6 Ib., 355.) The English authorities are equally explicit.

II. Under the construction given to the law of practice by the Court of Appeals, a party is not now allowed, as formerly, to put in a general denial which is'false. It matters not whether the denial be general or special, or contain matter set up by way of avoidance. If false, it is equally opprobrious, and falls within the reason for cutting up by the roots the whole practice of false pleading. (The People a. McCumber, 18 N. Y., 315 .)

III. An ordinary affidavit, to the effect that the defendant has a good defence on the merits, is of no avail on this motion. It is the pretended defence spread on the record. As was well said in the case of Nichols a. Jones ( 6 How. Pr., 355 ), before cited, the defendant is called on to meet the charge of falsity “ directly and distinctly.” And it may also be added, “without evasion.” The cases of Belden a. Devoe ( 12 Wend., 223 ), Cutler a. Biggs ( 2 Hill, 409 ), and 1 How. Pr., 166 , are directly in point.

IY. It is no answer to the motion, or ground of objection to hearing it, that it was not made at an earlier day, or that the defendant has put himself to great expense in his preparation to sustain a false answer. When did a court of justice ever listen to a wrongdoer’s argument to stay the arm of justice, grounded on the steps he himself had taken, to prevent his iniquity from being traced ?

Lot C. Clark, for the defendant.

—I. This is not an appealable order within section 349 of the Code, and the appeal should be dismissed. 'The motion was not heard upon its merits, but was decided on a preliminary objection to the hearing, on the grounds: 1. That the plaintiffs were too late in making the motion. 2. That the hearing of the motion, on the papers on which it was noticed by plaintiffs, would virtually involve an

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examination ■ of the merits, in order -to determine the truth or falsity of the answer. 3. That the plaintiffs had not served the defendants with copies of the papers on which the motion was founded. These grounds involved merely questions of practice, and were addressed to the discretion of the court. (James, J., in Titus a. Relyea, 8 Abbotts’ Pr., 177.)

IT. But had the motion been heard on its merits and denied, the order would not have been an appealable one. It did not “involve the merits of the action,”.or “ affect a substantial right.” An order striking out portions of a pleading, if the portion stricken out affects the rights of a party, is appealable, but not an order refusing to strike out. (Whitney a.Waterman, 4 How. Pr., 313 ; Bedell a. Stickles, 3 Code R., 105.) If the court decides to entertain this appeal, then we say the order below should be affirmed.

III. The plaintiffs have been guilty of gross laches in not making this motion at an earlier day. By noticing a cause for trial, a party admits his adversary’s pleading is sufficient. (Esmond a.Van Benschoten, 5 How. Pr., 44 .)

IY. The amended answer which is sought to be stricken out, was allowed by the court to be put in on motion, after notice and service of a copy on the plaintiffs’ attorney. The plaintiffs did not then reserve the right to move to strike out the answer, nor do they show that any new matter has come to their knowledge since the former motion. Without one or the other, they have no right' to move. (How. Code, 657; Willet a. Fayerweather, 1 Barb., 72 ; Dollfus a. Frosch, 5 Hill, 493 .)

—The objection to .the falsity, of the allegations made in the answer should have been taken when the motion was made for leave to put in the amended answer. A copy of it was served, the plaintiff had the opportunity of seeing its truth or falsity, and he should then have objected to its being put in; not having done so, he is precluded afterwards from making a motion to strike it out.-

It is also a serious objection to such a motion, that it is founded on the examination of witnesses in the cause; and it in fact amounts to a trial of the case, if the court can be called upon to

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try whether an answer is true or not, according to the testimony of witnesses examined in the cause.

On looking at the answer, it appears that many of the denials are general. Where this is so, an answer will not he stricken out as false.

Although the order appealed from was not made on this ground, the motion should on that account have been denied.

The order appealed from should be affirmed with costs.

Footnotes

* Present, Clerke, P. J., Gould and Ingraham, JJ