Hildreth v. Mercantile Trust Co.

JENKS, J. We are of opinion that the demurrer is not so plainly bad as to require no argument to show it so, and that bare inspection of the pleading indicates that it was made in bad faith. Therefore, it [583] cannot be disposed of as frivolous. Cook v. Warren, 88 N. Y. 37; Strong v. Sproul, 53 N. Y. 497; Shaw v. Feltman, 99 App. Div. 514, 91 N. Y. Supp. 114. The learned counsel for the respondent contends that we should go beyond the question of 'frivolousness to the merits, but, under our decision in Shaw v. Feltman, supra, we think that we should not do so. The order should be reversed, with $10 costs and disbursements, and the motion denied, with costs. All concur.