Vlasto v. Varelopoulos

Per Curiam : The amended demurrer is in the form prescribed by subdivision 8, section 488 of the Code of Civil Procedure. By section 490 the pleader is authorized to state the grounds of his demurrer in the language specified in subdivision 8, above cited, and when so made it may not be disregarded. There is no defect of form in this demurrer, and as such form is specifically authorized by the Code it is at least a matter of doubt whether there is any power in the court to strike it out as frivolous. (Wayland v. Tysen, 45 N. Y. 281; [146] Barrie v. Yorston, 35 App. Div. 404.) Aside from this question, however, it is evident that the court was not authorized to strike out the pleading as frivolous. Judgment is never ordered on account of the frivolousness of a pleading unless its insufficiency is so clear that it appears from a mere statement without argument, and whenever it is necessary to make an examination of the pleading to determine whether the motion should be granted or not, it becomes improper to strike out the pleading for such reason. (Henriques v. Trowbridge, 27 App. Div. 18.) In the present case it was easily within the power of the counsel for the defendant to make a more or less plausible argument that the complaint was insufficient, in that it did not aver any special damage to the plaintiff arising out of the publication of the alleged libel. If such averment was necessary it is easily seen that the demurrer thereto was good. It is apparent also that there may be some defect in the form in which the innuendoes are stated. Within the rule, therefore, it seems to have been improper to adjudge this demurrer to be frivolous. The effect of the order which has been entered is somewhat drastic, as it deprives the defendant of opportunity to plead over and has relegated the case to a sheriff’s jury for an assessment of damages. It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Present —Patterson, O’Brien, McLaughlin, Hatch and Laughlin, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.