Cook v. . Warren
New York Court of Appeals
Appeal from judgment of the General Term of the Sn- . preme Conrt, in the fourth judicial department, entered upon an order made April 6, 1880, which affirmed a judgment in favor of plaintiff entered upon an order directing judgment against defendants Whiteside and Warren on the ground of the frivolousness of their demurrer to the complaint.
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Appeal from judgment of the General Term of the Sn- . preme Conrt, in the fourth judicial department, entered upon an order made April 6, 1880, which affirmed a judgment in favor of plaintiff entered upon an order directing judgment against defendants Whiteside and Warren on the ground of the frivolousness of their demurrer to the complaint. The complaint alleged “that the defendant Thomas D. Hammond, on the 8th day of December, in the year 1877, at Mayville, N. Y., made his promissory note in writing, dated that day, whereby, by the name of T. D. Hammond, six months after date, for value…
1Opinion of the CourtFinch, J.
We do not think this demurrer was frivolous. To justify an order which so determines, or a judgment founded upon such decision, the demurrer must be not merely without adequate reason, but so clearly and plainly without foundation that the defect appears upon mere inspection, and indicates that its interposition was in bad faith. If any argument is required to show that the demurrer is bad it is not frivolous. ( Youngs v. Kent, 46 N. Y. 672; Dixon C. Co. v. N. Y. Steel Works, 57 Barb. 447.) In this case the argument has not even satisfied us that the demurrer was not good. The complaint was…
2Cases cited4 opinions
- Allen v. . PattersonNew York Court of Appeals · 1852
- Youngs v. . KentNew York Court of Appeals · 1871
- Woodbury v. SackriderNew York Supreme Court · 1856
- Joseph Dixon Crucible Co. v. New York City Steel WorksNew York Supreme Court · 1870
3Cited by31 opinions
- General Investment Co. v. Interborough Rapid Transit Co.New York Court of Appeals · 1923
- Germain v. HarwellMississippi Supreme Court · 1914
- Dancel v. Goodyear Shoe Machinery Co. of Portland, MainAppellate Division of the Supreme Court of the State of New York · 1902
- Rankin v. BushAppellate Division of the Supreme Court of the State of New York · 1904
- Hespe v. Corning Glass Works, Inc.District Court, W.D. New York · 1935
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