Hagedorn-Merz Co. v. Burns

Sewell, J.: The notice of appeal states that the appeal is from an order granted herein at a Special Term of the Supreme Court, “ entered in the Sullivan county clerk’s office on May 29, 1916, denying plaintiff’s motion that that portion of the answer herein which ‘ denies each and every other allegation contained in said complaint except as hereinafter admitted, qualified or explained ’ be stricken out as frivolous.” In reviewing the order appealed from it is not necessary to express an opinion with respect to the form of the denial, for, assuming that it does not controvert any allegation of the complaint, and is, therefore, frivolous it should not be stricken out on that account. The Code of Civil Procedure does not authorize the striking out of an answer or any part of an answer on the ground that it is frivolous. (Briggs v. Bergen, 23 N. Y. 162; Fettretch v. McKay, 47 id. 426.) The remedy for a frivolous pleading is a motion for judgment thereon under section 537 of the Code of Civil Procedure. (Rochkind v. Perlman, 123 App. Div. 808; Strong v. Sproul, 53 N. Y. 497.) The relief afforded by this section can, however, only be granted where the whole answer is frivolous, where there is no affirmative defense, the theory being that there is in effect no answer at all, and, therefore, the plaintiff should have judgment as for a failure to answer. (Soper v. St. Regis Paper Co., 76 App. Div. 409; Reese v. Walworth, 61 id. 64; Barton v. Griffin, 36 id. 572.) In this case the answer also sets up sufficient facts to entitle the defendant to prove the alleged breach of warranty. He [485] is entitled to a trial, and to have the facts determined upon evidence in the usual manner. The plaintiff seems to concede that he was not entitled to judgment upon the pleadings, but contends that the appeal is only from that part of the order that denied the motion to strike out the denial and that this refusal affected a substantial right. I think that the whole order is before us upon this appeal. The notice of appeal is not from so much of the order as denies the motion to strike out the denial. It is not from a specified part, but from the order, entered as stated therein, which denied the motion for judgment on the answer as frivolous. That was the only determination that could be made. The application to strike out was not a material or proper part of the motion. On granting a motion for judgment, on the ground of the frivolousness of a pleading, the pleading adjudged to be frivolous is not stricken out, but remains upon the record and becomes a part of the judgment roll. A judgment granted on the motion of frivolousness of a pleading is rendered on the pleading and not without it, and the pleading remains in the case. (Briggs v. Bergen, 23 N. Y. 162.) If this appeal is not from the whole order; if the order should be regarded as separated, and the appeal only from the part “ denying plaintiff’s motion that that portion of the answer herein which ‘ denies each and every other allegation contained in said complaint, except as hereinafter admitted, qualified or explained,’ ” it should be dismissed. It is only “ a party aggrieved ” by an order of the Special Term who may appeal therefrom. (Code Civ. Proc. § 1294.) The plaintiff was not aggrieved by this part of the order, because, as before observed, the Code does not authorize the striking out of a denial as frivolous. The order appealed from should, therefore, be affirmed, ■with ten dollars costs and disbursements. All concurred, except Kellogg, P. J., who favored modification and affirmance as per opinion.