Hyperlawhypertext legal database Raisin v. Schechtman 151 N.Y.S. 276

← Cases

Raisin v. Schechtman

151 N.Y.S. 276 Court Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ. Decision date 1915-01-15 English

Contents

Majority

p. 276
RAISIN v. SCHECHTMAN.
(Supreme Court, Appellate Term, First Department.
January 15, 1915.)

Headnote

Pleading (§ 364[1] ) — Sham and Frivolous Answer — Material Issue.
Portions of defendant’s answer which put in issue material allegations of the complaint cannot be stricken as sham or frivolous.
[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1156-1162; Dec. Dig. § 364.*]
Appeal from City Court of New York, Special Term.
Action by Isidor Raisin against Louis Schechtman. From an order striking certain denials in defendant’s answer, on the ground that they were frivolous and sham, defendant appeals.
Reversed, and motion to strike denied.
Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.
Floyd K. Diefendorf, of New York City (John T. Fadden, of New York City, of counsel), for appellant.
Eugene Moskovitz, of New York City (Sydney Rosenthal, of Brooklyn, of counsel), for respondent.

The court has no power to strike out portions of defendant’s answer as sham or frivolous which put in issue material allegations of the complaint. Schlesinger v. McDonald, 106 App. Div. 570 , 94 N. Y. Supp. 721 ; Howe v. Elwell, 57 App. Div. 357 , 67 N. Y. Supp. 1108 ; Alexander v. Aronson, 65 App. Div. 174 , 72 N. Y. Supp. 640 .

The order must therefore be reversed, with $10 costs and disbursements, and motion denied, with $10 costs.

Cases cited