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Smith v. Smith

121 N.Y.S. 1085 Court N.Y. App. Div. Decision date 1910-03-11 English

Delivered by SCOTT, J.

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p. 1085
SMITH v. SMITH et al.
(Supreme Court, Appellate Division, First Department.
March 11, 1910.)

Headnote

Pleading (§ 358[1] )—Sufficiency of Counterclaim—Testing on Motion to Strike Answer.
The sufficiency of a counterclaim cannot be tested on a motion to strike an answer as frivolous, as the Code provides other means of testing such pleading.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1096-1101; Dec. Dig. § 358.[1] ]
p. 1086
Appeal from Special Term, New York County.
Action by Alice Smith against Alfred H. Smith and another, doing business as Alfred H. Smith & Cb. From an order overruling an amended answer as frivolous, defendants appeal.
Reversed.
Argued before CLARKE, McLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ.
* Franklin Bien, for appellants.
Burt D. Whedon, for respondent.

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 appealed from reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.