Rochkind v. Perlman
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Max J. Perlman and another, from a ■ judgment of tlie Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the itliyday of June, 1907, pursuant to an'order entered in said clerk’s office on the 4th day of June, 1907, granting the plaintiffs’ motion for judgment upon the ground that the answer interposed by the appellants was frivolous and sham, and also from the said order upon which the judgment…
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Appeal by the defendants, Max J. Perlman and another, from a ■ judgment of tlie Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the itliyday of June, 1907, pursuant to an'order entered in said clerk’s office on the 4th day of June, 1907, granting the plaintiffs’ motion for judgment upon the ground that the answer interposed by the appellants was frivolous and sham, and also from the said order upon which the judgment appealed from was entered.
1Opinion of the Court
Gaynor, J.:
1. The notice of motion was for judgment on the answer as “ frivolous and sham”. This was indiscriminate and inaccurate, for the words are not synonymous, or even like in meaning, and motion for judgment may be made only on a frivolous answer. The remedy prescribed for a sham defence is a motion to strike it out. A denial can never be treated as sham, but may be frivolous.
There is no defence, i. e., affirmative defence, as it is sometimes called, pleaded in this answer, but only denials, and denials which are sufficient in form may not be struck out as frivolous, and no denial may…
2Cases cited11 opinions
- San Francisco Gas Co. v. City of San FranciscoCalifornia Supreme Court · 1858
- Wayland v. . TysenNew York Court of Appeals · 1871
- Mulcahy v. BuckleyCalifornia Supreme Court · 1893
- Case & wife v. AbeelNew York Court of Chancery · 1829
- Goodell v. BlumerWisconsin Supreme Court · 1877
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3Cited by38 opinions
- Dwan v. MassareneAppellate Division of the Supreme Court of the State of New York · 1922
- Fleischer v. TerkerNew York Court of Appeals · 1932
- Stroock Plush Co. v. TalcottAppellate Division of the Supreme Court of the State of New York · 1908
- Royal Bank of Canada v. WilliamsAppellate Division of the Supreme Court of the State of New York · 1927
- Meadow Brook National Bank v. FeracaNew York Supreme Court · 1952
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