McNeil v. Board of Supervisors

Jenks, J.:

The plaintiff moved for judgment in that the defendants’ demurrer was frivolous. The Special Term thereupon made an order that declared the demurrer frivolous, and ordered judgment with costs and $10 costs of the motion, but that also granted leave to the defendants on payment of $10 costs .of this motion to serve an answer within 10 days. The plaintiff appeals from the part of the order that permits an answer. (Code Civ. Proc, § 497,) When a demurrer is overruled as frivolous, the demurrant as a defendant should not be permitted to answer in course, but only upon a showing to the reasonable satisfaction of the court that the demurrer was interposed in good faith and that he has a valid defense. (See Patten v. Harris, 10 Wend. 623; Miller v. Heath, 7 Cow. 101; Fishery. Gould, 81 N. Y. 231; Osgood v. Whittelsey, 20 How. Pr. 72; Norwood v. Harris, 69 N. C. 204.) It does not . appear that the defendants even attempted thus to satisfy the court. Hence to permit this order to stand is a recognition of practice which is available for mere vexation or for delay. Doubtless the Special Term, upon due and diligent application, would withhold the entry of judgment upon the frivolous pleading to enable the pleader to satisfy the court that he should be permitted to answer upon proper terms.

■ The order so far as appealed from is reversed, with $10 costs and disbursements, without prejudice to the respondents to apply for leave to answer.

Hirscjhberg, P. J., Woodward, ¡Rich and Miller, JJ., concurred.

Order ■ so far as appealed from reversed, with ten dollars costs and disbursements, without prejudice to the respondents to apply for leave to answer.