Hoffnung v. Grove — 18 Abb. Pr. 142

Majority

p. 142

HOFFNUNG a. GROVE.

Supreme Court, First District;

General Term, Nov., 1864.

Headnote

Judgment on Failure to Answer.

Where a motion for judgment on the answer as sham and frivolous had been denied, defendant’s attorney insisting on the argument that as the plaintiff’s attorney had returned the answer, there was no answer in the cause ;—Held, that plaintiff was strictly regular in thereafter entering judgment as upon a failure to answer.

Appeal from an order denying a motion to set aside judgments for irregularity.

The facts of this case fully appear in our report of the decision below, from which this appeal was taken. (Ante, 14.)

Although the attorney of the plaintiff had clearly no right to return the answers, because he deemed them frivolous, and although no attorney or counsel has the right to determine the validity or sufficiency of any pleading, yet, on the motion before Judge Barnard, the objection offered by the counsel of the defendant, and accepted by the judge, amounted to an admission that the answers were deemed by him to have been duly returned, and. to be no longer effectual as answers. I think the latter is estopped from claim-' ing, now, that they could, after the motion referred to, be effectual to prevent plaintiff’s attorney from taking the default of the defendant for rvant of answers, without prejudice to defendant’s right to apply to the favor of the court. The order should be affirmed, with $5 costs in each case.

Order accordingly.

Footnotes

* Present, Leonard, P. J., Sutherland and Clerks, JJ.