Majority
p. 377WESTERVELT v. MORRELLE. (City Court of New York, General Term. March 6, 1899.)
Headnote
Lease—Sham Pleading.In an action to recover rent under a written lease, an answer admitting execution of the lease and. alleging cancellation and rescission, with a counterclaim, is not a sham pleading.
p. 378Argued before FITZSIMONS, C. J., and CONLAN, J.
Appeal from special term.
Action by Annie H. Westervelt against Elizabeth T. Morrelle. From an order striking out an answer as defendant appeals.
Reversed.
J. J. Karby Kennedy, for appellant
Chas. S. Clark, for respondent.
Appeal from an order striking out an answer as sham. The action was brought to recover rent under the terms of a written lease. The answer admits the making of the lease, and alleges the cancellation and rescission thereof, together with a counterclaim for $150. The affirmative issues thus raiséd cannot be stricken out as sham. Sham issues in this connection are synonymous with false issues, and to strike them out as sham would be to dispose of the merits on a motion. Wayland v. Tysen, 45 N. Y. 281 ; Miller v. Hughes, 21 How. Prac. 442; Webb v. Foster, 45 N. Y. Super. Ct. 311 ; Farnsworth v. Halstead (Sup.) 10 N. Y. Supp. 763 ; Barney v. King (Sup.) 13 N. Y. Supp. 685 . Order appealed from reversed, with costs.
Cases cited
- Wayland v. Tysen 45 N. Y. 281 p. 378
- Webb v. Foster 45 N. Y. Super. Ct. 311 p. 378