Sutton v. Duntley

Seaks, J.:

When this case was reached for trial at the Chautauqua Trial Term, the plaintiff moved to strike out the defendant’s answer as frivolous. This motion was improper in form, for such a motion must be noticed within twenty days from the service of the pleading to which the motion is addressed. (Rules Civ. Prac., rule 105.) In this case no notice was given, and more than twenty days had elapsed. It was, however, at that time open to the plaintiff to move for judgment on the pleadings, and as the relief sought on either motion would be practically the same, we treat the motion made as…