McFarland, Dodge & Co. v. Lester

language eleadot»: answer. This answer was verified, and is in .the allowed by the Revision (§ 2880). Thu£ a material issue was formed, and plaintiffs, before they could recover, were' bound to prove the material allegations of their complaint. If this is so, then defendants made or presented a substantial defense to plaintiffs’ cause of action. Beyond the answer there was no showing. To hold it frivolous, the rule is that its insufficiency must be so glaring that the court can say by its mere inspection that it does not contain any defense to any part of the complaint. The eomplaint is not that the answer is a sham or a false pleading, made apparent by affidavits of otherwise, but that, the court could see at once, without, argument, that the defense was frivolous. We confess that we do not see how this can be done, when the answer is in the very. language allowed by the statute, and especially when it is verified. Therefore, though not without some doubt, we are of the opinion that such an answer cannot be treated as frivolous.

*262This subject has received no little attention in the New York courts, and while the cases are not entirely consistent, we believe the decided preponderance is in favor of the conclusion just stated.

The following cases may be consulted: Leach v. Boynton, 3 Abb. Pr. 1 (making a distinction between a sham and frivolous answer, and disapproving Edwards v. Lent, 8 How. Pr. 28, and like cases). Caswell v. Bushnell, 7 Id. 171; S. C. 14 Barb. 393; Mier v. Cartlege, 8 Id. 75; Broome Co. Bank v. Lewis, 18 Wend. 566; Genesse Ins. Co. v. Moynihen, 5 How. Pr. 321; Snyder v. White, 6 Id. 321; Nichols v. Jones, Id. 355; Kelley v. Barnett, 16 Id. 135; Hecker v. Mitchell, 5 Abb. 453; Shearman v. N. Y. Central Mills, 1 Id. 187; Rae v. Wash. Ins. Co., 6 How. Pr. 21; Temple v. Murray, Id. 329. This last case was by the payee against the maker of a promissory note, the answer was under oath, and in words almost like that before us. The motion to strike was overruled, and a similar order should have been made in this case.

Eeversed.