Legal Opinion

Darrow v. Miller

New York Supreme Court

Decided December 27, 1850PublishedCited by 1 opinion

The plaintiff’s attorney gave the defendant’s attorney notice that he would move this day at the office of the justice “for an order that the answer of the defendant to the complaint in this action be stricken out on the grounds of the frivolousness thereof with costs, or for such other or further order as the said justice shall deem proper to grant.”

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The plaintiff’s attorney gave the defendant’s attorney notice that he would move this day at the office of the justice “for an order that the answer of the defendant to the complaint in this action be stricken out on the grounds of the frivolousness thereof with costs, or for such other or further order as the said justice shall deem proper to grant.” The plaintiff’s counsel now moves upon this notice and the complaint and answer, that the answer be stricken out, or that the plaintiff have judgment on account of .the frivolousness of the answer. Various objections are taken by the defendant’s…

1Opinion of the Court

Sill, Justice.—'The

specific relief asked for in the notice is, that the answer may be stricken out as frivolous. To justify this order it must appear that the answer is a “sham pleading” which does not necessarily follow from its being merely frivolous. Sham answers and defences maybe stricken out on motion (Code, § 152).

If an answer be frivolous the plaintiff may move for judgment upon it in court, or before a judge out of court, and judgment may be given accordingly (§ 247). The mischiefs which these sections of the Code, were designed to remedy, have, I think, as well as the remedies…

2Cases cited5 opinions

  1. Patten v. HarrisNew York Supreme Court · 1834
  2. Miller v. HeathNew York Supreme Court · 1827
  3. Heaton v. BartlettNew York Supreme Court · 1835
  4. Belden v. DevoeNew York Supreme Court · 1834
  5. Davis v. AdamsNew York Supreme Court · 1825

3Cited by1 opinion

  1. Smith v. ThompsonAppellate Division of the Supreme Court of the State of New York · 1907

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