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Sickles, 9 How., 217; Livingston vs. Finckle, 8 How., 485; Caswell vs Bushnell, 14 Barb., 393. Also, as Sherman vs. Bushnell, 7 How., 171; Lefferts vs. Snediker, 1 Abb., 41; Goedel vs. Robinson, 1 Abb., 116; Grant vs. Power, 12 How., 500; Farmers' and Mechanics' Bank of Rochester vs. Smith, 15 How., 329; Gregg vs. Reader, 15 How., 371. See also, Gregory vs. Wright, 11 Abb., 417.

These cases must now be considered as overruled, and the contrary doctrine supported, as laid down in Mier vs. Cartledge, 4 How., 115; Same case, 8 Barb., 75; 2 C. R., 125 (sustaining the decision at special term on this point); Conklin vs. Vandervoort, 7 How., 483; Nichols vs. Jones, 6 How., 355; Walker vs. Hewitt, 11 How., 395.

See also the following cases, since decided on the authority of The People vs. McCumber: Corbett vs. Eno, 22 How., 8; 13 Abb., 65; Butterfield vs. Macomber, 22 How., 150; Fosdick vs. Groff, 22 How.,158; Elizabethport Manufacturing Company vs. Campbell, 13 Abb., 86. See, however, Mussina vs. Stillman, 13 Abb., 93, adhering to the former doctrine.

The other controversy arose, with relation to the effect of the verification of an answer. It was laid down that the mere fact of verification was of itself controlling, and that a verified answer could not, under any circumstances, be stricken out as false. Mier vs. Cartledge, 8 Barb., 75; 2 C. R., 125; Tracy vs. Humphrey, 5 How., 155; 3 C. R., 190; Catlin vs. McGroarty, 1 C. R. (N. S.), 291; Miln vs. Vose, 4 Sandf., 660; Caswell vs. Bushnell, 14 Barb., 393; also as Sherman vs. Bushnell, 7 How., 171; Gregg vs. Reeder, 15 How., 371. See likewise, Gregory vs. Wright, 11 Abb., 417.

These cases must also be held to be overruled, and the contrary doctrine established, as held previously in Nichols vs. Jones, 6 How., 355; Ostrom vs. Bixby, 9 How., 57 (60); Thorn vs. New York Central Mills, 10 How., 19 (25); Walker vs. Hewitt, 11 How., 395; Manufac turers' Bank of Rochester vs. Hitchcock, 14 How., 406; Farmers' and Mechanics' Bank of Rochester vs. Smith, 15 How., 329; Blake vs. Eldred, 18 How., 240; Reed vs. Latson, 15 Barb., 9 (17). See also decisions following The People vs. McCumber, above cited.

The following cases, in which denials of facts, presumptively within the knowledge of a defendant, and evidently interposed for the purpose of delay, have been decided to be no defence, and stricken out, come clearly within the same general principle, as to the falsity of an answer, as above established: Richardson vs. Welton, 4 Sandf., 708; Hance vs. Remming, 2 E. D. Smith, 48; 1 C. R. (N. S.), 204. (See also Mott vs. Burnett, 2 E. D. Smith, 50; affirming, pro tanto, same case, 1 C. R. (N. S.), 225.) Fleury vs. Roger, 5 Sandf., 646; 9 How., 215; Flammer vs. Kline, 9 How., 216; Fleury vs. Brown, 9 How., 217; Ketchum

vs. Zerega, 1 E. D. Smith, 553; Walker vs. Hewitt, 11 How., 395; Hecker vs. Mitchell, 6 Duer, 687; 5 Abb., 453; Slack vs. Cotton, 2 E. D. Smith, 398; Wesson vs. Judd, 1 Abb., 254.

The above principles will not, however, be carried out with rigor, nor, as a general rule, will a defendant be deprived of the benefit of a defence, unless it is incontestably false, and put in, evidently, for the purposes of delay. See 18 N. Y., 325, above referred to.

Thus, where the moving affidavits merely tended to avoid the defence set up, and not to show it to be untrue, the answer was allowed to stand. Wirgman vs. Hicks, 6 Abb., 17.

Very slight evidence of good faith, will also prevent the pleading from being stricken out. Munn vs. Barnum, 12 How., 563; 1 Abb., 281; Farmers' and Mechanics' Bank of Rochester vs. Smith, 15 How., 329; Gregg vs. Reader, 15 How., 371; Darrow vs. Miller, 5 How., 247; 3 C. R., 241; Leach vs. Boynton, 3 Abb., 1; Fosdick vs. Groff, 22 How., 158.

An answer, containing the elements of a valid defence, though badly pleaded, will not be stricken out. Alfred vs. Watkins, 1 C. R. (N. S.), 343; Seward vs. Miller, 6 How., 312; Struver vs. Ocean Insurance Company, 2 Hilt., 475; 9 Abb., 23; Gregory vs. Wright, 11 Abb., 417. And even when manifestly put in for delay, the answer must be false. in fact, or it will not be sham. Garvey vs. Fowler, 4 Sandf., 665; 10 L. 0., 16.

Matter, constituting a clearly untenable defence, was stricken out, in Howard vs. Franklin Marine and Fire Insurance Company, 9 How., 45. See also Lee Bank vs. Kitching, 11 Abb., 435. See, as to a defence, wholly defective in form, Blake vs. Eldred, 18 How., 240.

When an answer, duly verified, states a sufficient defence, as within the knowledge of the defendant, it should not be stricken out as sham. But this rule should not apply to a statement of transactions between the plaintiff and third parties, when contradicted by sufficient affidavits. In such a case, the defendant must show that the defence is made in good faith. Miller vs. Hughes, 21 How., 442; 13 Abb., 93, note.

See also, as to striking out the defence of usury, on affidavits showing a sufficient explanation, the defendant failing to show facts sufficient to constitute an usurious agreement. Bailey vs. Lane, 21 How., 475; 13 Abb., 354. Likewise, as to an untenable plea of foreign usury, Willis vs. Cameron, 12 Abb., 245.

In Van Buskirk vs. Roberts, 14 How., 61, a separate defence was stricken out for inconsistency, but whether a motion will properly lie on that ground, seems questionable. See subject heretofore considered in book VI., chapter I., under that head. See, per contra, Smith vs. Wells, 20 How., 158 (167).

In Drake vs. Cockroft, 4 E. D. Smith, 34; 10 How., 377; 1 Abb., 203, portions of an answer, consisting of mere denials of a conclusion of law, were stricken out.

A motion of this nature is maintainable as to parts of a pleading. Although in the nature of a demurrer, it is not subject to the same restrictions. De Santes vs. Searles, 11 How., 477.

As to granting leave to part of the defendants to answer over, in granting a motion of this description, as against the others, see Burrall vs. Bowen, 21 How., 378.

(d.) APPLICATION UNDER SECTION 247.

This form of application, like the preceding, is one only admissible in extreme cases, and, being a matter of strict practice, is not entitled to any special favor of the court.

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In cases where the question is raisable by demurrer to the answer, a motion will generally be inadmissible. Demurrer will accordingly be the more proper course, when the defence set up consists of new matter, except where such new matter is palpably no defence upon face. Prior to 1857, when an answer could be generally demurred to, this principle was of still wider application. See Miln vs. Vose, 4 Sandf, 660; White vs. Kidd, 4 How., 68; Alfred vs. Watkins, 1 C. R. (N. S.), 343; Scovill vs. Howell, 2 C. R., 33. The restriction, imposed in that year, confining the power of demurrer to answer, to allegations of new matter, has somewhat tended to enlarge the practical scope of section 247, as regards merely negative defences.

Still, in either case, a motion on this ground will not, as a general rule, be entertainable, where the question, as to whether the defence is, or is not, frivolous, is open to any doubt whatever. To ground the objection, and warrant a judgment under section 247, "the case should be entirely clear, palpable on the statement of the facts, and requiring no argument to make it more apparent.' Rae vs. The Washington Mutual Insurance Company, 6 How., 21; 1 C. R. (N. S.), 185; Hull vs. Smith, 1 Duer, 649; 8 How., 149; Smith vs. Mead, 14 Abb., 262; Shearman vs. New York Central Mills, 1 Abb., 187 (190); Leach vs. Boynton, 3 Abb., 1; Seward vs. Miller, 6 How., 312; Littlejohn vs. Greeley, 22 How., 345; 13 Abb., 311.

On an application of this nature, the truth or falsity of the defence interposed is not material to the question, which is merely, whether it does, or does not, constitute a defence. Hecker vs. Mitchell, 6 Duer, 687; 5 Abb., 453; Reed vs. Latson, 15 Barb., 9 (17); Leach vs. Boynton, 3 Abb., 1.

Nor will mere vagueness in statement constitute a sufficient ground. Kelly vs. Barnett, 16 How., 135; Martin vs. Kanouse, 11 How., 567;

2 Abb., 327; Struver vs. Ocean Insurance Company, 2 Hilt., 475; 9 Abb., 23; Alfred vs. Watkins, 1 C. R. (N. S.), 343.

And, if any material issue, however slight in its nature, be joined by the pleading objected to, the adverse party cannot claim this summary remedy, but must leave the action to proceed in its ordinary course. Davis vs. Potter, 4 How., 155; 2 C. R., 99; Garvey vs. Fowler, 4 Sandf., 665; 10 L. O., 16; Lord vs. Cheeseborough, 4 Sandf., 696; 1 C. R. (N. S.), 322; Williams vs. Richmond, 9 How., 522; Metropolitan Bank vs. Lord, 4 Duer, 630; 1 Abb., 185; Shearman vs. New York Central Mills, 1 Abb., 187; Wesson vs. Judd, 1 Abb., 254; Leach vs. Boynton, 3 Abb., 1; Duncan vs. Lawrence, 3 Bosw., 103; 6 Abb., 304; Smith vs. Mead, 14 Abb., 262.

The application rests, however, very much in the discretion of the court; and, where a defence was evidently bad, relief of this nature has not unfrequently been granted on application under this section, even though the question might have been disposed of, by demurrer ir the ordinary form.

Thus, as to an evasive denial, of facts clearly within the defendant's means of knowledge. Chapman vs. Palmer, 12 How., 37; Thorne vs. New York Central Mills, 10 How., 19.

Or an answer, merely denying a conclusion of law, and not the facts on which it is based.. Witherspoon vs. Van Dolar, 15 How., 266; Gilbert vs. Covell, 16 How., 34; Higgins vs. Rockwell, 2 Duer, 650; Fosdick vs. Groff, 22 How., 158. But not so, if the conclusion denied forms the issue actually tendered by the complaint. McKnight vs. Hunt, 3 Duer, 615.

An answer tendering no issue, except one that is immaterial, has also frequently been held frivolous. St. Mark's Fire Insurance Company vs. Harris, 13 How., 95; Wood vs. Derrickson, 1 Hilt., 410; Fosdick vs. Groff, 22 How., 158; Pettigrew vs. Chave, 2 Hilt., 546; Hecker vs. Mitchell, 6 Duer, 687; 5 Abb., 453 (455); Elizabethport Manufacturing Company vs. Campbell, 13 Abb., 86. Or, when it sets up matter wholly inadmissible as a defence, but merely tending to mitigation of damages. Lane vs. Gilbert, 9 How., 150; Saltus vs. Kip, 5 Duer, 646; 12 How., 342; 2 Abb., 382; Gilbert vs. Rounds, 14 How., 46. Or where the new matter set up is merely such that, if set up by way of special plea, under the former system, it would have been held bad on general demurrer. Strong vs. Stevens, 4 Duer, 668.

A gross mispleader, in setting up a simply negative defence, has also been held to render an answer frivolous. Shearman vs. New York Central Mills, 1 Abb., 187; Kamlah vs. Salter, 1 Hilt., 558; 6 Abb., 226; Tompkins vs. Acer, 10 How., 309.

A plea of usury, wholly defective in not setting out the facts relied VOL. II.-12

on, was also held to have been properly adjudged frivolous, on motion under the section, in Manning vs. Tyler, 21 N. Y., 567.

Where a defence set up is clearly untenable under former decisions, it may be ground for holding it to be frivolous. Strong vs. Stevens, 4 Duer, 668; Bank of Wilmington vs. Barms, 4 Abb., 226; The People vs. McCumber, 27 Barb., 632 (638); 15 How., 186 (192); affirmed, 18 N. Y., 315.

And, where uncontroverted allegations of the complaint showed a defence set up to be wholly untenable, judgment was awarded upon it as frivolous. Reilly vs. Cook, 22 How., 93; 13 Abb., 255.

The questions as to what will or will not constitute a frivolous demurrer, have been already considered, and the decisions in point cited, in chapter II. of the present book, section 172.

(e.) FORM AND INCIDENTS OF ABOVE MOTIONS.

In either case, the notice of motion should be framed in exact accordance with the terms of the section under which it is made.

If the application be made under section 152, the demand should be, that the pleading, or the defence, impeached, be stricken out as sham and irrelevant, or as either, if only one of those objections be applicable. The motion is an ordinary one, brought on in the usual manner, and on the usual notice.

The motion under section 247 is, on the contrary, of a special nature. Five days' notice only is necessary, and the motion may be made to a judge, either in or out of court. The notice must also state that a judgment on the frivolous pleading will be applied for. If it merely give notice of application for an order, it will be insufficient. And it must not ask that the pleading be stricken out. That pleading must, on the contrary, remain upon and constitute part of the record, in order to warrant the decision, and with a view to its revision, on appeal, if taken. See, on these points, Darrow vs. Miller, 5 How., 247; 3 C. R., 241; Rae vs. Washington Mutual Insurance Company, 6 How., 21; 1 C. R. (N. S.), 185; Hull vs. Smith, 1 Duer, 649; 8 How., 149; Lefferts vs. Snediker, 1 Abb., 41; Briggs vs. Bergen, 23 N. Y., 162. In Reilly vs. Cook, 22 How., 93; 13 Abb., 255, this distinction seems to have been disregarded.

A motion under this section will, in all cases, be necessary in order to obtain any relief, for, however frivolous a pleading may be, it cannot, if duly served, be disregarded.

Either form of motion is based upon the pleadings themselves. No extrinsic affidavits will therefore be necessary to be served with the notice. Nor will any be requisite, when the adverse party appears. Darrow vs. Miller, 5 How., 247; 3 C. R., 241.

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