Pigot v. McKeever
New York Supreme Court
Motion for judgment on a reply to a counterclaim as frivolous. The reply to the counterclaim is in the very words of the counterclaim, that the plaintiff “ denies the allegations therein contained in the following terms: ‘ That on or about the first day of April, 1899, it was necessary for the defendants to put men to work under the contract set forth under plaintiff’s first cause of action; that the plaintiff violated and made a breach of the terms of said agreement set…
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Motion for judgment on a reply to a counterclaim as frivolous. The reply to the counterclaim is in the very words of the counterclaim, that the plaintiff “ denies the allegations therein contained in the following terms: ‘ That on or about the first day of April, 1899, it was necessary for the defendants to put men to work under the contract set forth under plaintiff’s first cause of action; that the plaintiff violated and made a breach of the terms of said agreement set forth in his first cause of action, and on or about the 10th day of April, 1899, completely abandoned the work under said…
1Opinion of the Court
Gaynor, J.:
This is a frivolous pleading. Though purporting to be a negative of the allegations of the counterclaim, it is a negative pregnant with their substantial truth. A denial in haec verba of the matter to be denied, with its allegations of “ on or about”, and its conjunctives, disjunctives, adjectives, and so on, is consistent with the substantial truth of the matter purporting to be denied. It is no denial (Kelly v. Sammis, 25 Misc. Rep. 6; Stuber v. McEntee, 142 N. Y. 206). And yet this way of denial in haec *46verba has grown to he quite common. It seems to have been started by a…
2Cases cited4 opinions
- Stuber v. . McEnteeNew York Court of Appeals · 1894
- Flack v. O'BrienNew York Supreme Court · 1897
- Kelly v. SammisNew York Supreme Court · 1898
- Mitnacht v. HawthorneNew York Supreme Court · 1900