Crucible Co. v. Steel Works ( 1870 )

By the Court.—Ingraham, P. J.

The appeal in this case is from an order refusing to strike out an answer as frivolous.

The answer is clearly bad, and if the motion had been granted, it would have been difficult to find any good reason for reversing the order. But we do not think an order which denies a motion to strike out a pleading as frivolous, can be reviewed on appeal.

It is not a substantial right to have it stricken out; on the contrary, it is a matter of discretion with the judge whether it should be so stricken out or not.

The practice has been permitted to allow counsel to argue in favor of, or against, such a motion, when the rule should be the other way. Under the old system, on an application of this character, no argument was' ever allowed. The court,. on inspection, would decide whether or not a pleading was frivolousand if any doubt existed, the motion would be denied. So, under our present system, if the pleading is not so bad as to show on its face that it is frivolous, no argument should be allowed, and the party should be left-to a demurrer.

If the judge improperly held a pleading to be frivolous, it is appealable, because the party putting in the pleading loses a right to such pleading ; but the reverse is not true; no right is lost, and the party objecting to its sufficiency may have it set aside on demurrer.

If a party making such a motion cannot satisfy a judge that the pleading is frivolous, even after an argument, he will not be allowed to have a second argument to make out a pleading frivolous, when, according to both the old and present system, a pleading, to be frivolous, must show its defects on the first inspection (see Fillette v. Hermann, 8 Abb. Pr. N. S., 193, note).

Order affirmed, without costs.