Westervelt v. Morrelle

Appeal from an order striking out an answer as sham.

The action was brought to recover rent under the terms of a written lease.

*871The answer admits the mating of the lease and alleged the cancellation and rescission thereof together with a counterclaim, of *160.

The affirmative issues thus raised cannot be stricken out as sham.

Sham issues in this connection are synonymous with false issues, and to strike them out as sham would be to dispose of the merits on a motion. Wayland v. Tysen, 45 N. Y. 281; Hiller v. Hughes, 21 How. Pr. 442; Webb v. Foster, 45 N. Y. Supr. Ct. 311; Farnsworth v. Halstead, 18 Civ. Pro. 227; Barney v. King, 37 N. Y. St. Repr. 533.

Order appealed from reversed, with costs.

Present: Fitzsimons, Ch. J., and Conlan, J.

Order reversed, with costs.