Hull v. Smith
The Superior Court of New York City
This was a motion to strike out an answer as frivolous. The action was upon a promissory note by the payee against the maker; the complaint was in the usual form, but the answer merely denied upon information and belief that the plaintiff was the “ lawful bolder and owner of the note.” The plaintiff had noticed the cause for trial at two or three successive terms after the service of the answer, and upon this ground it was insisted that the motion was too late.
1Concurrence
Oakley, Ch. J. (Duer, Campbell, Bosworth and Emmett, Justices, concurred).
It is not necessary now to determine whether a motion of this kind can properly be entertained after the plaintiff has noticed the cause for trial, since upon another ground the motion, in its present form, must be denied.
When the entire answer is alleged to be frivolous, it can not be stricken out under sections 152 or 160 of the Code, but the proper motion is under section 247, for a final judgment. Such a motion is a substitute for a demurrer, and raises substantially the same question; although, as we have…
2Cited by6 opinions
- Hemme v. HaysCalifornia Supreme Court · 1880
- Witherell v. WibergU.S. Circuit Court for the District of Oregon · 1877
- Anderson v. McNeelyAppellate Division of the Supreme Court of the State of New York · 1907
- Soper v. St. Regis Paper Co.Appellate Division of the Supreme Court of the State of New York · 1902
- Rosenberg v. HymanAppellate Terms of the Supreme Court of New York · 1903
1 more not listed; retrieve them via the Exa API.