McCarty v. O'Donnell
The Superior Court of New York City
Appeal from an order striking out an answer, as sham. The complaint, verified in the proper manner, was as follows: “The complaint of the plaintiff shows to the court: First. That at the times hereinafter mentioned, she was the owner of a cottage, butcher shop, and room over the same in house, wagon shed and slaughter house situate at Far Rockaway, Queens county, in the state of Yew York. Second.
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Appeal from an order striking out an answer, as sham. The complaint, verified in the proper manner, was as follows: “The complaint of the plaintiff shows to the court: First. That at the times hereinafter mentioned, she was the owner of a cottage, butcher shop, and room over the same in house, wagon shed and slaughter house situate at Far Rockaway, Queens county, in the state of Yew York. Second. That the defendant occupied the same by the permission of this plaintiff from June 3, 1867, to the 8th day of October, 1867, when he abandoned the same to this plaintiff. Third. That the use of the…
1Opinion of the Court
By the Court, Jones, J.
I think it may now be considered as settled, (whatever may be actually or apparently held to the contrary in Hadden v. The N. Y. Silk Manufacturing Co., (1 Daly, 389,) that the court has power to strike out a defense as sham upon the sole ground that it is false. (People v. McCumber, 18 N. Y. Rep. cited from page 321, and eases there cited.) It is evident, however, that the exercise of such power must be confined within very narrow limits, so as to avoid entrenching upon the defendant’s right to a trial of a disputed fact. It cannot be that the question as to whether an…
2Cited by7 opinions
- Andrews v. SheehySupreme Court of Louisiana · 1909
- Fuentes v. GainesSupreme Court of Louisiana · 1873
- Succession of LamptonSupreme Court of Louisiana · 1883
- Cannon v. WhiteSupreme Court of Louisiana · 1861
- Citizens Bank & Trust Co. v. JonesLouisiana Court of Appeal · 1936
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