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Valsto v. Varelopoulos

76 N.Y.S. 771 Court N.Y. App. Div. Decision date 1902-06-06 English

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p. 771
VALSTO v. VARELOPOULOS et al.
(Supreme Court, Appellate Division, First Department.
June 6, 1902.)

Headnote

Libel—Pleading—Frivolous Demurrer—Striking Demurrer.
Where in libel there is a demurrer to the complaint on the’ ground that it does not state facts constituting a canse of action, and it appears that defendant may make a more or less plausible argument that the complaint is insufficient in not averring special .damages, and it ?is apparent there may be some defect in the form in which the innjiendoes are stated, the demurrer will not be stricken for frivolity.
Appeal from special term, New York county.
Action by Demetrius J. Valsto .against Panaghiote Varelopoulos and another. From an order overruling a demurrer to the complaint, defendants appeal.
Reversed.
Argued before HATCH, McRAUGHEIN, PATTERSON, OBRIEN, and EAUGHEIN, JJ. ' r! ;
Charles Maitland Beattie, for appellants.
Louis F. Doyle, for respondent.

The amended demurrer is in the form prescribed by subdivision 8, § 488, Code Civ. Proc. By section 490 the pleader is authorized to state the grounds of his -demurrer in the language specified in subdivision 8, above cited, and when so made it may not be disregarded. There is no defect of form in - this demurrer, and, as such form„ is specifically .authorized by -the Code,-it is at least a matter of doubt whether there is any power- in the -court to strike it out as frivolous. Wayland v. Tysen, 45 N. Y. 281 ; Barrie v. Yorston, 35 App. Div. 404 , 54 N. Y. Supp. 841 . .Aside, -from this question, however, it is evident that the court was not authorized to strike .out the pleading as frivolous. .Judgment is -never ordered ón account of the' frivolousness of a pleading.mnless its insufficiency is so clear that it appears from, a mere statement without argument, and whenever it is .neqesgary to, make..an«-examinatian of the pleading to, 'determine whether thpj motioji',;shquljj-,jpe granted or, npt it, Recomes impi;o.pei; .to strike qut ¡'^Ee .¿iqaclingjfor

p. 772
such reason. Henriques v. Trowbridge, 27 App. Div. 18 , 50 N. Y. Supp. 108 . In the present case it was easily within the power of. the counsel for the defendant to make a more or less plausible argument that the complaint was insufficient in that it did not aver any special damage to the plaintiff arising out of the publication of the alleged libel. If such averment was necessary, it is easily seen that the demurrer thereto was good. It is apparent also that there may be some defect in the form in which the innuendoes are stated. Within the rule, therefore, it seems to have been improper to adjudge this pleading to be frivolous. The effect of the order which has been entered is somewhat drastic, as it deprives the defendant of opportunity to plead over, and has relegated the case to a sheriff’s jury for an assessment of damages.

It follows that the order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

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