Henry Huber Co. v. McAllester — 49 N.Y. St. Rep. 880

Majority

p. 880

The Henry Huber Co., Resp’t, v. Henry W. McAllester, App’lt.

(City Court of New York, General Term,

Filed December 22, 1892.)

Headnote

Pleading—Sham answeb.

An answer may be stricken out as sham where it is apparent that the object was merely to create delay, annoy the plaintiff or trifle with the court.

Appeal from order striking out defendant’s answer as shown.

D. S. Decker, for app’lt; Langbein Bros. & Langbein, for resp’t.

The proofs on the part of the plaintiff clearly show that the defendant never supposed he had any defense to the action.

He practically acknowledged the debt in a letter written after suit was threatened, and promised to make no trouble, but confess the debt. .

The defendant’s affidavit, in answer to the motion, fails to point ■out any defense.

He ought, under the circumstances, to have disclosed something meritorious in answer to the motion for judgmént.

Though courts seldom grant motions to strike out sham defenses, the power exists, Code, § 538, and may be exercised where it is apparent that the object of the plea was merely to ■create delay, annoy the plaintiff, or trifle with the court. Hadden v. Silk M. Co., 1 Daly, 388 . While such power exists, it must be sparingly exercised; it was not abused in this instance, and the ■order appealed from must be affirmed, with costs.

Newbueger, J., concurs.