Bachrach v. Manhattan Railway Co. — 154 N.Y. 178

Majority

p. 178

Samuel Bachrach, Respondent, v. The Manhattan Railway Company et al., Appellants.

Headnote

Appeal—Motion to Dismiss-—Frivolous Exceptions. To sustain a motion to dismiss an appeal before argument, on the ground that the judgment below has been unanimously affirmed by the Appellate Division as to the facts and that the exceptions in the case are frivolous, the exceptions must be so obviously frivolous on their face as to require no argument to demonstrate it.

Reported below, 1 App. Div. 634 .

(Argued October 18, 1897;

decided October 26, 1897.)

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 24, 1896, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

The grounds of the motion are stated in the opinion.

Oharlós A. B. Pratt for motion.

Ohcvrles A. Gardiner opposed.

This is a motion by the plaintiff to dismiss the appeal upon the ground that the judgment below-lias been unanimously affirmed by the Appellate Division as to the facts, and that the exceptions in the case are frivolous.

This motion is one of a large class imposing much labor on the court, and that ought not to be made.

An exception must be so obviously frivolous on its face as to require no argument to demonstrate it.

In this case briefs are submitted, citing authorities to support the opposing' views. The fact that such a course is necessary is conclusive evidence that the motion should be denied.

An examination of this record discloses a number of exceptions that can only be disposed of after argument of the appeal.

p. 179

The rule in motions of this character is similar to that applied to a party asking judgment on a frivolous pleading.

This memorandum is handed down in order that the bar may understand the strictness of this rule.

Motion denied, with ten dollars costs.

All concur.

Motion denied.