First National Bank v. Slattery
Appellate Division of the Supreme Court of the State of New York
" Appeal by the defendant, Edward J. Slattery, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office. of the clerk of the county of Saratoga on the 6th day of September, 1895, upon the decision of the court rendered upon a motion made at Special Term striking out a portion of said defendant’s answer as sham, with notice of an intention to bring up for review upon such appeal an order made at the Albany Special Term, bearing date the 27th day…
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" Appeal by the defendant, Edward J. Slattery, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office. of the clerk of the county of Saratoga on the 6th day of September, 1895, upon the decision of the court rendered upon a motion made at Special Term striking out a portion of said defendant’s answer as sham, with notice of an intention to bring up for review upon such appeal an order made at the Albany Special Term, bearing date the 27th day of August, 1895, striking out a portion of defendant’s answer as sham and directing judgment for the plaintiff upon the…
1Opinion of the Court
Parker, P. J.:
The Code of Civil Procedure (§ 538) gives the court authority to strike out a sham defense. It may not strike out a counterclaim as *424sham, for that is not a defense within the meaning, of that section; (Collins v. Suau, 7 Robt. 94; Fettretch v. McKay, 47 N. Y. 427.) Ror can it strike out an answer which consists of a mere denial for the reasons given in Thompson v. Erie Railroad Co. (45 N. Y. 468). But we have no doubt of its authority, in a proper case to strike out any affirmative defense if it clearly appears that it is .a false one. (Commercial Bank, etc., v. Spencer, 76 N.…
2Cases cited4 opinions
- Thompson v. . the Erie Railroad CompanyNew York Court of Appeals · 1871
- Concordia Savings and Aid Ass'n v. . ReadNew York Court of Appeals · 1883
- Equitable Life Assurance Society of United States v. CuylerNew York Court of Appeals · 1878
- Commercial Bank of Rochester v. . SpencerNew York Court of Appeals · 1879
3Cited by6 opinions
- LeRoy Dyal Co. v. AllenCourt of Appeals for the Fourth Circuit · 1947
- H. C. King Motor Sales Corp. v. AllenAppellate Division of the Supreme Court of the State of New York · 1924
- Cunningham v. PlattNew York Supreme Court · 1913
- Joint Stock Co. of Volgakama Oil & Chemical Factory v. National City BankAppellate Division of the Supreme Court of the State of New York · 1924
- Frey v. SylvesterNew York Supreme Court · 1898
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