Halliday v. Barber , 37 Misc. 840 ( 1902 )

Hasgarr, J.

The only question, it seems to us, presented • for determination is whether the amended answer is frivolous within the meaning of the Code, and the decisions enlarging upon the same.

Whatever agreement may or may not have been made by the parties, subsequent to the execution of the written lease, it became the right of defendant to have his sworn allegations passed upon by a jury, as questions of fact, however improbable these allegations may appear. The various matters set up, if true, would tend to establish a set-off against plaintiff’s claim. It is not whether a demurrer would lie, but whether the pleading served is, upon its face, without any merit as a pleading. 27 App. Div. 22; 32 id. 171; 58 Hun, 375. The fact that counsel must be heard, and statute and decisions must be examined, in order to enable a determination upon the plea of sufficiency to be formed, is an answer to the objection.

The order overruling the amended answer as frivolous should be reversed, and the judgment entered thereon vacated with ten dollars costs and disbursements of appeal, and the motion denied with ten dollars costs.

O’Dwyer, J., concurs.

Order reversed and judgment vacated, with ten dollars costs and disbursements and motion denied, with ten dollars costs.