Hyperlawhypertext legal database Belesena Coal-Mining Co. v. Liberty Dredging Co. 55 N.Y.S. 747

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Belesena Coal-Mining Co. v. Liberty Dredging Co.

55 N.Y.S. 747 Court N.Y. City Ct. Decision date 1899-01-18 English

Delivered by O’DWYER, J.

Contents

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p. 747
BELESENA COAL-MIN. CO. v. LIBERTY DREDGING CO.
(City Court of New York, General Term.
January 18, 1899.)

Headnote

1. Motion to Strike Answer—Laches.
Motion to strike out an answer five months after service of the answer, and after a reply and notice for trial have been served, comes too late.
2. Same.
A motion to strike out an answer as frivolous should be denied, where It contains a good general denial of allegations contained in plaintiff’s complaint, alleging a sale, delivery, and promise to pay.
Appeal from special term.
Action by Belesena Coal-Mining Company against the Liberty Dredging Company. From an order of the special term denying his motion to strike out the amended answer, plaintiff appeals.
Affirmed.
Argued before O’DWYEB and OLCOTT, JJ.
John L. Wilkie and Winslow Thayer, for appellant.
Charles Goldzier, for respondent.

The motion was properly denied. The first paragraph of the defendant’s amended answer contains a good general

p. 748
denial of the allegations contained in the third, fourth, and fifth paragraphs of the plaintiff’s complaint, i. e. the sale, delivery, and promise to pay. The second defense is good, if sustained by proof, and, inasmuch as the plaintiff’s allegations are in issue upon the denial thereof, should not be disposed of upon affidavits. The plaintiff has been guilty of laches. The motion to strike out the answer was made five months after the service of the answer, and after a reply and notice of trial had been served. .

Order affirmed, with $10 costs and disbursements. All concur.