Howe v. Elwell
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Joseph E. Elwell, from an order of the Supreme Court, made at Broome Special Term and entered in the office of the clerk of the county of Otsego on the 10th day of May, 1900, striking out the answer of the defendant as sham, false and frivolous. This is an action for slander.
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Appeal by the defendant, Joseph E. Elwell, from an order of the Supreme Court, made at Broome Special Term and entered in the office of the clerk of the county of Otsego on the 10th day of May, 1900, striking out the answer of the defendant as sham, false and frivolous. This is an action for slander. The first Count of the complaint contains the usual allegations charging that the defendant maliciously spoke concerning the plaintiff certain defamatory words, therein specifically set forth. The second count is vague and general and in substance alleges that the defendant at various times and…
1Opinion of the Court
Edwards, J. :
An answer cannot be stricken out as frivolous. If adjudged to be frivolous, judgment must be ordered thereon and the pleading must remain in the record and become a part of the judgment roll. (Strong v. Sproul, 53 N. Y. 497.) The inference, therefore, is that the answer was stricken out as sham. (Briggs v. Bergen, 23 N. Y. 162.)
*358The form of the general denial “ upon information and. belief ” is good (Bennett v. Leeds Mfg. Co., 110 N. Y. 150), and a general or specific denial, if pleaded in a form permitted by the Code, cannot be stricken out as sham, although shown by affidavits…
2Cases cited7 opinions
- Wayland v. . TysenNew York Court of Appeals · 1871
- Bennett v. . Leeds Manufacturing Co.New York Court of Appeals · 1888
- Strong v. . SproulNew York Court of Appeals · 1873
- Briggs v. . BergenNew York Court of Appeals · 1861
- Edwards v. LentNew York Supreme Court · 1852
2 more not listed; retrieve them via the Exa API.
3Cited by8 opinions
- Schlesinger v. WiseAppellate Division of the Supreme Court of the State of New York · 1905
- Tooele Meat & Storage Co. v. Eite Candy Co.Utah Supreme Court · 1917
- Hespe v. Corning Glass Works, Inc.District Court, W.D. New York · 1935
- Horvath v. BrettschneiderNew York City Court · 1928
- Nichols v. CorcoranNew York Supreme Court · 1902
3 more not listed; retrieve them via the Exa API.