Arnold v. Arnold
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Emma Arnold, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Fulton on the 23d day of August, 1909, denying the plaintiff’s motion to strike out an alleged counterclaim in defendants’ amended answer.
1Opinion of the Court
Kellogg, J.:
The motion came before the court upon an order to show cause why the alleged counterclaim should not be stricken out upon the ground that it is not a proper counterclaim. If the facts alleged *759do not constitute a counterclaim, demurrer is the proper remedy (Hanson Co. v. Collier, 119 App. Div. 794.) A sham answer is one which is false, and may be stricken out under section 538 of the Code of Civil Procedure. (Rochkind v. Perlman, 123 App. Div. 808.) The criticism upon the alleged counterclaim is not that it is false, but that conceding the facts stated to be true, it does not state…
2Cases cited2 opinions
- Rochkind v. PerlmanAppellate Division of the Supreme Court of the State of New York · 1908
- W. T. Hanson Co. v. CollierAppellate Division of the Supreme Court of the State of New York · 1907
3Cited by1 opinion
- Plymouth Garage, Inc. v. ShanlyAppellate Division of the Supreme Court of the State of New York · 1915