Owens v. R. Hudnut's Pharmacy

The rule is now well settled that an answer denying each and every allegation in the complaint, not herein specifically admitted or denied, is authorized in form and should not be stricken out as frivolous. Calhoun v. Hallen, 25 Hun, 155 . Indeed, there is no such practice as the striking out of an answer, or part of an answer, as frivolous. If the entire pleading is frivolous, the party aggrieved may move for judgment thereupon, Code, § 537, and such is the only proper practice. Here, however, the denial was stricken out as irrelevant and redundant as well as frivolous. It was clearly relevant even if the form were unauthorized, and it could not, therefore, be stricken out as irrelevant, still less as redundant. An unauthorized form of denial may sometimes be equivalent to an admission, but even then it cannot be stricken out as frivolous, irrelevant or redundant. But the present denial was correct, even in form, within the rules laid down in Allis v. Leonard, 46 N. Y., 688 ; more fully, 22 Alb. Law Jour., 28; Clark v. Dillon, 97 N. Y., 377 ; Griffin v. Long Island R. R. Co., 101 id., 348; 1 N. Y. State Rep., 56. What was previously admitted was clear enough, so was what was ignored; and hence, as was said in Griffin v. Long Island R. R. Co., .supra, “there was no doubt or confusion as to the application of this general denial.”

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., and Bartlett, J., concur.