Majority
p. 911Alice Smith, Respondent, v. Alfred H. Smith and Harrison B. Smith, Doing Business under the Firm Name and Style of Alfred H. Smith & Company, Appellants.
Headnote
Practice — motion to strike out answer as frivolous — counterclaim.Appeal from an order of the Special Term entered in the New York county clerk’s office on the 31st day of January, 1910, overruling the amended answer as-frivolous.
Defendants appeal from an order overruling the answer as frivolous and directing judgment for the plaintiff. The answer contains attempted denials, which are obviously bad and raise no issue. It also contains a counterclaim. It is settled that the sufficiency of a counterclaim may not be tested upon a motion to strike out an answer as frivolous. (Cooper v. Howe, 16 Hun, 502 .) The Code provides other means of testing such a pleading. Order reversed, with ten dollars costs and disbursements; and motion denied, with ten dollars costs. Clarke, McLaughlin, Laughlin and Dowling, JJ., concurred.