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Hildreth v. Mercantile Trust Co.

112 A.D. 916 Court N.Y. App. Div. English

Delivered by Jenks, J.:

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p. 916
Joseph D. Hildreth, Respondent, v. Mercantile Trust Company and Others, Appellants, Impleaded with Another.

Headnote

Pleading — demurrer not disposed of as frivolous when hare inspection does not show had faiths merits not considei'ed.
Appeals by the defendants, the Mercantile Trust Company and Others, from an order -'of the Supreme Court, enteredin the office of the clerk of Suffolk county on-the 33d day of January, 1906. •

We are of opinion that the demurrer is not so plainly had as to require no .argument to show it. so, and that hare- inspection of "the pleading indicates that it was made in bad faith. Therefore, it cannot he disposed of as frivolous. (Oooh v. Warren, 88 N. Y. 87 ; Strong v. Bproul, 53. id. 497; Shaw v. Pelt-man, 99 App. Div. 514 ) The le&rned-counsel for the respondent contends that xve should .go-beyond the -question of frivolousness to the merits, hut under our decision in'Shaw v. Pelt-man {supra) we think- that we should not do so, The order should he reversed, with ten dollars costs and disbursements, and the motion denied, with costs. Woodward, Gaynor and Rich, JJ.., concurred. Order reversed, with ten dollars costs and disbursements, and motion' denied, with costs. "

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