Reese v. Walworth — 61 A.D. 64

Majority

p. 64

John H. Reese, Respondent, v. Edward H. Walworth, Appellant, Impleaded with Others.

Headnote

M'iwlous answer—judgment must be entered thereon—a sham answer is to be stricken out — what answer is not sham.

Neither the whole nor any part of an answer can be stricken out as frivolous; the proper practice is to move for judgment thereon under section 537. of the . Code of' Civil Procedure, and this relief can be granted only where the whole answer is frivolous.

p. 65

A sham answer is a false answer and may be stricken out upon motion under section 538 of the Code of Civil Procedure.

An answer which denies knowledge or information sufficient to form a belief as to whether the bond and mortgage in suit had been assigned to the plaintifi, and which alleges payments other than those stated in the complaint, is not sham.

Appeal by the defendant, Edward H. Walworth, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 18th day of May, 1900, striking out a portion of said defendant’s answer as sham or frivolous and giving judgment for the plaintiff thereon.

E. 0.. Worden, for the appellant.

A. F. Swyles, for the respondent.

The order appealed from should be reversed, with ten dollars costs and disbursements.

The ground stated in the order for striking out a portion of the answer as sham or frivolous is quite indefinite. The relief on account of a frivolous answer is an application for judgment under section S3,7 of the Code of Civil Procedure. The court, however, can afford this relief only where the whole answer is frivolous, the theory being that there is in effect no answer at all, and, therefore, the plaintiff should have judgment as for failure to answer. There is no provision for striking out an answer or any part thereof as frivolous. Clearly the order appealed from cannot be sustained as directing judgment on account of a frivolous answer. The answer denied material allegations of the complaint, and alleged payments other than those stated and allowed by the complaint. Such an answer cannot be regarded as frivolous.

. A sham answer or defense may be stricken out by the court upon motion under section 538 of the Code of Civil Procedure. A sham answer is a false answer. The answer here denied, in the form provided by the Code of Civil Procedure, that the bond and mortgage in suit had been assigned to the respondent, and it alleged payments other than those stated and allowed by the complaint. The order was made upon the basis that the allegation as to payments

p. 66

was true, and, therefore, the answer in that respect was not sham or false. The denial as to the transfer of the bond and mortgage to the respondent was a denial of knowledge or information sufficient to form a belief.. Such a denial was proper- under section 500 .of the Code of Civil Procedure, and there is nothing in the record to show that the appellant, when he made such denial, had any knowledge or information on the subject, or that the allegation was in any way sham or false. It may well be that such transfer had, in fact, been made. The proof given on the motion very satisfactorily showed that the respondent was the owner of the bond and mortgage when the action was commenced, but the falsity of the denial in the answer was not .thereby established. The remedy afforded by this order was unauthorized. The case should have been tried on the pleadings, and determined in the ordinary way.

The order must he reversed, with ten dollars costs and disbursements.

All concurred.

Order appealed from reversed, . with ten dollars costs and disbursements. . . ..