Majority
p. 582(112 App. Div. 916) HILDRETH v. MERCANTILE TRUST CO. et al. (Supreme Court, Appellate Division, Second Department. April 27, 1906.) Argued before WOODWARD, JENKS, RICH, and GAYNOR, JJ.
Headnote
Pleading — Motions to Strike — Feivolous Demurrer.Where a demurrer is not so plainly bad as to require no argument to show it so, and a bare inspection does not indicate that it was made in bad faith, it cannot be disposed of as frivolous.
[Ed. Note. — For cases in point, see vol. 39, Cent. Dig. Pleading, § 1101.]
Appeal from Special Temí, Suffolk County.
Action by Joseph D. Hildreth against the Mercantile Trust Company and others. From an order disposing of a demurrer as frivolous, defendants appeal.
Reversed, with $10 costs and disbursements.
William F. Goldbeck (Bainbridge Colby, on the brief), for appellants Mercantile Trust Co. and Alvin W. Krech.
William C. Prime, for appellants McCook and Alexander.
Robert D. Murray, for respondent.
We are of opinion that the demurrer is not so plainly bad as to require no argument to show it so, and that bare inspection of the pleading indicates that it was made in bad faith. Therefore, it
p. 583
cannot be disposed of as frivolous. Cook v. Warren, 88 N. Y. 37 ; Strong v. Sproul, 53 N. Y. 497 ; Shaw v. Feltman, 99 App. Div. 514 , 91 N. Y. Supp. 114 . The learned counsel for the respondent contends that we should go beyond the question of 'frivolousness to the merits, but, under our decision in Shaw v. Feltman, supra, we think that we should not do so.
The order should be reversed, with $10 costs and disbursements, and the motion denied, with costs.
All concur.
Cases cited
- Cook v. Warren 88 N. Y. 37 p. 583
- Strong v. Sproul 53 N. Y. 497 p. 583
- Shaw v. Feltman 99 App. Div. 514 p. 583