Struver v. Ocean Insurance
New York Court of Common Pleas
Appeal from an order striking out an answer as irrelevant and frivolous. The action was on five several promissory notes, made by the defendants to the order of the plaintiffs.
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Appeal from an order striking out an answer as irrelevant and frivolous. The action was on five several promissory notes, made by the defendants to the order of the plaintiffs. The complaint alleged that the defendants were a corporation, organized under the laws of the State of New York, and transacting business in the city of New York, and then alleged the making and delivery of the notes, in the usual form; but it did not show the character of their business or corporate powers, except so far as that is implied in the defendant’s name. The allegations of the answer were as follows :…
1Opinion of the Court
By the Court.*—Brady, J.
The plaintiff has mistaken his *27remedy. He should have either demurred, or moved to make the first defence set up in the answer, more definite and certain. The substance of this part of the answer, if well pleaded, would be a defence to some part of the plaintiffs’ claim. If the notes were given in payment of a claim arising upon a policy of insurance fraudulently procured, the plaintiff could not succeed. The question of consideration is always open between the original parties to a promissory note. The distinctions between a sham, irrelevant, and frivolous answer, are…
2Cited by7 opinions
- Houghton & Palmer v. BeckOregon Supreme Court · 1881
- Giesing v. SchowengerdtMissouri Court of Appeals · 1887
- Bagley v. JenningsNew York Supreme Court · 1890
- Hall v. United States Casualty Co.New York Supreme Court · 1925
- Keegan v. SageNew York Court of Common Pleas · 1893
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