Wilcox v. Home Life Insurance

Plaintiff obtained an order for judgment on the answer, under section 547 of the Code, created by Laws 1908, p. 462, c. 166, § 1, which order, however, gave leave to the defendant to plead over on payment of costs and upon serving an amended answer within six days from service of the order; otherwise, final judgment to be entered upon the pleadings. Defendant appeals from that part of the order which grants judgment.

*938The reason alleged for granting the order seems to be that the first defense is insufficient to raise an issue, but that the second defense had merit. A summary judgment should not be given on an answer, tinless the answer as a whole is frivolous, since, if one of the defenses is good, the whole answer is clearly not frivolous. Strong v. Sproul, 53 N. Y. 497.

The order is reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.