Fettretch v. . McKay
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term striking out a counter-claim set up in defendant’s answer as irrelevant. The complaint is to recover a balance claimed to be due for the purchase of certain premises in New York city, alleged to have been conveyed by plaintiff to defendant.
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Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term striking out a counter-claim set up in defendant’s answer as irrelevant. The complaint is to recover a balance claimed to be due for the purchase of certain premises in New York city, alleged to have been conveyed by plaintiff to defendant. The counter-claim alleged damages for the non-delivery of possession of the premises at the time agreed, and for the removal of certain fixtures which, by the terms of the agreement, were purchased with the property. A frivolous…
1Per curiam
The Code of Procedure does not authorize the striking out of an answer or any part of an answer on the ground that it is frivolous. (Briggs v. Bergen, 23 N. Y., 162; Thompson v. Erie Railway Co., Ct. of App., May 18, 1871.) But we i^pt assume that this answer was not stricken out as frivolous. (23 N. Y., supra) There is no pretence that the counter-claim is sham. A sham pleading is a false pleading. There is nothing in the papers to show nor is it claimed that the counter-claim is false. 17or can this counterclaim be stricken out as an irrelevant defence. It is not a defence. There is a…
2Cases cited1 opinion
- Briggs v. . BergenNew York Court of Appeals · 1861
3Cited by11 opinions
- Cornell v. BonsallAppellate Division of the Supreme Court of the State of New York · 1917
- Kane v. KaneAppellate Division of the Supreme Court of the State of New York · 1990
- Edelman v. EdelmanNew York Supreme Court · 1976
- Robert Gere Bank v. InmanNew York Supreme Court · 1889
- Long v. Mutual Trust Life InsuranceSupreme Court of Minnesota · 1934
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