Hill v. Warner

Spring, J.: It was essential for the' plaintiff to aver that notice of the entry of the judgment was served upon the attorney for the appellant, and also upon the sureties. (Code Civ. Proc. § 1309; Porter v. Kingsbury, 71 N. Y. 588; Rae v. Beach, 76 id. 164 ; Chilson v. Howe, 23 N. Y. St. Repr. 26.) The defendant, therefore, could put this fact in issue, and his answer does this by an allegation conforming to the requirements of the Code. Such an answer cannot be overruled as frivolous. (Trumbull v. Ashley, 26 App. Div. 356; Bennett v. Leeds Mfg. Co., 110 N. Y. 150 ; Byrne v. Hegeman, 24 App. Div. 152; Stockton v. Kenney, 24 Misc. Rep. 300.) The truth or falsity of the answer cannot be determined upon this motion. The vice of a sham answer is its falsity, and a defense of that kind can be stricken out on motion. (Code Civ. Proc. § 538.) A frivolous pleading is one which on inspection is inherently bad, that is, it contains no defense. While it may be quite apparent the pleading is interposed to gain time the court cannot say, on a bare [426] examination of it, that this denial of a material allegation of the complaint is made for that purpose. Issues raised in a permissible manner cannot be disposed of in that summary -way. The order is reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements.