Hyperlawhypertext legal database McNeil v. Board of Supervisors 115 N.Y.S. 215

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McNeil v. Board of Supervisors

115 N.Y.S. 215 Court N.Y. App. Div. Decision date 1909-03-05 English

Delivered by JENKS, J.

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p. 215
McNEIL v. BOARD OF SUP’RS OF SUFFOLK COUNTY et al.
(Supreme Court, Appellate Division, Second Department.
March 5, 1909.)

Headnote

Pleading (§ 222[1] )—Answer After Overruling Demurrer to Complaint.
Under Code Civ. Proc. § 497, providing that on the decision- of a demurrer the court may in its discretion allow the party in default to plead anew on such terms as are just, a defendant whose demurrer to the complaint has been overruled as frivolous must, to be permitted to answer, show to the reasonable satisfaction of the court that the demurrer was interposed in good faith and that he has a valid defense.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 570; Dec. Dig. § 222.*]
Appeal from Special Term, Suffolk County.
p. 216
Action by R. Gordon McNeil against the Board of Supervisors of the County of Suffolk and others. From" so much of an order sustaining a demurrer to the complaint as frivolous as permits defendant to answer, plaintiff appeals. Reversed.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
John J. Cunneen (William W. Niles, on the brief), for appellant.
George H. Furman, for respondents.

The plaintiff moved for judgment in that the defendants’ demurrer was frivolous. The Special Term thereupon made an order that declared the demurrer frivolous and ordered judgment, with costs and $10 costs of the motion, but that also granted leave to the defendant, on payment of $10 costs of this motion, to serve an answer within 10 days. The plaintiff appeals from the part of the order that permits an answer. Section 497 of the Code of Civil Procedure.

When a demurrer is overruled as frivolous, the demurrant as a defendant should not be permitted to answer in course, but only upon a showing to the reasonable satisfaction of the court that the demurrer was interposed in good faith and that he has a valid defense. See Patten v. Harris, 10 Wend. 624 ; Miller v. Heath, 7 Cow. 101 ; Fisher v. Gould, 81 N. Y. 231 ; Osgood v. Whittelsey, 20 How. Prac. 72; Norwood v. Harris, 69 N. C. 204 . It does not appear that the defendants even attempted to thus satisfy the court, and hence to permit this order to stand is a recognition of practice which is available for mere vexation or delay. Doubtless the Special Term, upon due and- diligent application, would withhold the entry of judgment upon the frivolous pleading to enable the pleader to satisfy the court that he should be permitted to answer upon proper terms.

The order, so far as appealed from, is reversed, with $10 costs and disbursements, without prejudice to the respondent to apply for leave to answer. All concur.

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