Majority
p. 1011(34 Misc. Rep. 693.) SCHMIDT v. McCAFFREY. (Supreme Court, Special Term, Nassau County. May, 1901.)
Headnote
Pleading—General Denial.A general denial cannot be stricken out as sham, under Code Civ. Proc. § 538, authorizing the striking out of “a sham answer or a sham defense.”
Action by George Schmidt against Robert McCaffrey. Motion to strike out answer as sham denied.
Edward L. Frost, for plaintiff.
. John B. Merrill, for defendant.
Section 538 of the Code of Civil Procedure is that “a sham answer or a sham defence may be stricken out,” etc. This distinguishes an “answer” and a “defence'’ as separate things in the terminology of pleading, whereas the term “answer” includes the term “defence,” An answer may consist of a denial or denials only, or of a “defence” only, or of both. Code Civ. Proc. § 500. But a denial cannot be struck out as sham, i. e., false, but only a “defence.” Wayland v. Tysen, 45 N. Y. 281 . This serves to illustrate the. differ
p. 1012
ence in terminology between a “denial” and a defence.” The inexact and Unscientific language of the Code ought to be that a “defence” may be struck out as sham. There are no defences pleaded here, but only a general denial.
The motion is denied, with $10 costs.
Cases cited
- Wayland v. Tysen 45 N. Y. 281 p. 1011