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determine it, upon a bare inspection, without argument. Nichols v. Jones, 6 How. 355, 358. A frivolous answer denies no material averment in the complaint, and sets up no defense. Hall v. Smith, 8 How. 149; S. C. 1 Duer, 649.

d. Vague pleading.-It is well settled. that vagueness in pleading is not frivolousness; it is to be corrected by amendment, and not visited by judgment. Kelly v. Barnett, 16 How. 137.

e. Rule as to frivolous demurrer.The rule is, that the court will not strike out a demurrer as frivolous, unless it clearly appears to be taken for the mere purpose of delay, or unless the grounds taken in it are clearly untenable. The court must be able to determine the fact upon a bare inspection. Sixpenny Savings Bank v. Sloan, 12 How. 544; Hecker v. Mitchell, 5 Abb. 453, 455. See, also, Lefferts v. Snediker, 1 id. 41; Leach Boynton, 3 id. 3; Brown v. Jenison, 3 Sandf. 732; S. C. Í Code R. N. S. 156; Struver v. Ocean Insurance Co. 2 Hilt. 475; S. C. 9 Abb. 23; Smith v. Mead, 14 id. 262. See, also, Elizabethport Manufactaring Co. v. Campbell, 13 id. 86.

V.

f. Leave to answer.-Where a demurrer to a complaint is overruled as frivolous, leave to answer will not be given without an affidavit of merits. Appleby v. Elkins, 2 Sandf. 673; S. C. 3 Code R. 206.

9. Reasonable doubt of pertinency. If there be any reasonable doubt whether the matter complained of is pertinent, the court

VI. EXAMPLES OF

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a. Promissory notes.-Where an answer is clearly frivolous, and a motion for judgment thereon is made under section 247 of the Code, it will be granted. Andrews v. Storms, 5 Sandf. 609, 610. Where an action is commenced on a promissory note against both maker and payee, an answer by the payee, that he indorsed the note for the accommodation of the maker, and that that fact was known to the plaintiff when he received it, was held frivolous. Pettigrew v. Chave, 2 Hilt. 546. In a like action, an answer which set up a parol agreement between the parties, with no consideration, and which was inconsistent with the tenor of the note, was held frivolous. Elizabethport Manufacturing Co. v. Campbell, 13 Abb. 87. See Phoenix Bank of New York v. Donnell, 40 N. Y. (1 Hand), 410, 414. Bailey v. Lane, 13 Abb. 354. An answer that there was a failure to present the note for payment, at the time it became due, and at the place where it was made payable, was held frivolous. Tompkins v. Acer, 10 How. 309. The following answer was held frivolous, although verified: "This defendant (a corporation) has no knowledge or information sufficient to form a belief that it did at the time, for that purpose stated in the complaint by its authorized agent, make its promissory note by the name and for the

will not order it to be stricken out, but the party will be put to his demurrer. Anonymous, 2 Sandf. 682. In respect to matters palpably redundant or frivolous, the court will strike them out, of course. Ib.

h. Motive no test.-The motive with which an answer is put in, or its truth or falsity, is not the test, on a motion for judgment, on the ground of its frivolousness Does it constitute a good defense on its face? if it does, the motion must be denied. Hecker v. Mitchell, 5 Abb. 453, 455; S. C. 6 Duer, 687.

i. Decisions in point.-A decision in point adverse to the sufficiency of a pleading, is held good ground for treating it as frivolous. People v. McCumber, 15 How. 186, 192; S. C. 27 Barb. 632; S. C. Aff'd, 18 N. Y. (4 Smith), 315; Bank of Wilmington v. Barnes, 4 Abb. 227; Strong v. Stevens, 4 Duer, 668; Langdale v. McLean, 10 Jurist, 642; Withers v. McLean, 6 Lond. Law Times, 352.

j. Reasons for holding a pleading frivolous.-1st. That it is merely put in for the purpose of delay; or, 2d. That the grounds stated in it are clearly untenable. Sixpenny Savings Bank v. Sloan, 12 How. 543, 544; S. C. 2 Abb. 414. See, also, Niblo v. Harrison, 7 id. 447 (n.); Munn v. Barnum, 12 How. 563; S. C. 1 Abb. 281; Rae v. Washington Mutual Insurance Co. 1 Code R. N. S. 185; S. C. 6 How. 21; Neefus v. Kloppenburgh, 2 Code R. 76; Temple v. Murray, 6 How. 331.

FRIVOLOUS ANSWERS.

amount, and as in this respect set forth in said complaint, or that it is indebted to the said plaintiffs upon such a note as is in the said complaint mentioned." Thorn v. New York Central Mills, 10 How. 20; Shearman v. New York Central Mills, 1 Abb. 191. A denial in the answer that the plaintiff is the lawful owner and holder of the note in suit, and which does not allege the title to be in some third person, held frivolous; also, that when the note was given, it was agreed that it should be renewed upon request. Fleury v. Roget, 5 Sandf. 646. A denial, in the answer, that the plaintiff was the lawful owner of the note, and that the defendant was indebted to him thereon, raises no issue of fact whatever, but is merely a denial of a conclusion of law; it will be stricken out as frivolous, and such is the uniform practice of the supreme court. Catlin v. Gunter, 1 Duer, 25.; S. C. 11 N. Y. Leg. Obs. 201, sub nom. Gunter v. Catlin; S. C. Rev'd, 11 N. Y. (1 Kern.), 368. See, also, Pierson v. Cooley, 1 Code R. 91; McMurray v. Gifford, 5 How. 14. See, also, De Santes v. Searle, 11 id. 477; Ferner v. Williams, 14 Abb. 215; Chadwick v. Booth, 13 id. 249; S. C. 22 How. 23; Strong v. Stevens, 14 Duer, 668; McKnight v. Hunt, 3 id. 615; Higgins v. Freeman, 2 id. 650; Buddington v. Davis, 6 How. 401, 402. In an ac

tion on a promissory note, an answer which sets up as a defense that the note was made as a memorandum note, and was not to be negotiated, is frivolous. Plant v. Schuyler, 4 Abb. N. S. 146; S. C. 7 Rob. 271.

b. Generally.-In an action for assault, if the defendant merely states matter in his answer controverting the degree of aggravation by which it was characterized, the plaintiff's remedy is to move for judgment under this section (247) of the Code, on account of the frivolousness of the answer. Lane v. Gilbert, 9 How. 150. See Gilbert v. Rounds, 14 id. 46. It is a frivolous answer for a married woman to aver that the mortgage in suit was not acknowledged by her on a separate examination. Cramer v. Comstock, 11 How. 486. See, also, Firemen's Insurance Co. of Albany v. Bay, 4 Barb. 407; S. C. 4 N.Y. (4 Comst.), 15, sub nom. Albany Fire Insurance Co. v. Bay. Also, where the answer set up a levy under a foreign attachment. Hecker v. Mitchell, 5 Abb. 453; S. C. 6 Duer, 687. Where nothing but the allegation of indebtedness set up in the complaint was denied, held frivolous. Fosdick v. Groff, 22 How. 158. The following answer was held frivolous, and a motion for judgment was granted, with $10 costs: "That the court has no jurisdiction of the action;

VII. EXAMPLES OF

that at the time of the commencement of this action, the said defendant was, and ever sinc has been, and still is, envoy extraordinary and minister plenipotentiary of the United States of America to Brazil, duly appointed and commissioned as such by the President of the United States; and that by the constitution of the United States, the courts of the United States alone have exclusive cognizance and jurisdiction in all cases affecting ambassadors, public ministers and consuls." Mechanics' Bank of New York v. Webb, 21 How. 451; S. C. 14 Abb. 72 (n.) Where the answer did not deny either the delivery by the plaintiff, nor the plaintiff's agency, nor the promise to pay the plaintiff, and only averred that the said goods belonged to "A," and not to the plaintiff; and that "A," and not the plaintiff, sold them to defendant. Held frivolous. Reilly v. Cook, 22 How. 93; S. C. 13 Abb. 255. In an action commenced against the sureties on an undertaking on appeal, it is a frivolous answer to say that the appellant owned real property, and that the execution was returned by the sheriff before the expiration of sixty days at the respondent's request, and without an attempt to collect the judgment out of such real estate. Wood v. Derrickson, 1 Hilt. 410.

ANSWERS NOT FRIVOLOUS.

a. Usury.-Where the answer avers that the plaintiffs discounted the drafts at a usurious rate of interest, contrary to the statute in such case made and provided, and then specifies the amount of interest taken; this may, or may not be an insufficient averment of a corrupt intent; but it is not so palpably defective in this respect as to authorize a judgment for frivolousness. National Bank of the Metropolis v. Orcutt, 48 Barb. 257.

b. Denial of knowledge.-In Morrow v. Gougan, 3 Abb. 328, the plaintiff sued in a representative capacity, and the complaint alleged in general terms that the defendant was indebted to him, etc. It was held not to be a frivolous answer, that denied any knowledge or information sufficient to form a belief whether he was so indebted to plaintiff.

c. Promissory note.-In Metropolitan Bank v. Lord, 1 Abb. 185; S. C. 4 Duer, 360, an action was commenced against both maker and payee, and the plaintiff, in order to show title in himself, averred an indorsement and delivery to himself, and that he was holder; held, that an answer which alleged a delivery to a third person, named, and a denial of delivery to plaintiff, was not frivolous.

the

d. Married woman.-In an action against a married woman to charge her separate estate, held, not a frivolous answer, to aver that she has no separate estate. Aitken v. Clark, 15 Abb. 319.

e. Trade-mark.-In an action brought to enjoin defendants from infringing plaintiffs' trade-mark, the answer is not frivolous, which alleges that a small and specified

quantity of said merchandise had been sold; that the same was sold to the plaintiffs' agent at their request; that the use of the label was accidental, and that there was no intention to defraud the plaintiffs. Guilhon v. Lindo (No. 2.), 9 Bosw. 605. An answer denying knowledge, or information sufficient to form a belief as to all the material allegations of the complaint, is not frivolous. Rich ter v. McMurray, 15 Abb 346.

f. Commercial paper.-An action was commenced on a promissory note; the complaint alleged that the plaintiff was the owner and holder of such note. An answer denying that the plaintiff was owner and holder, and which alleged that a third party was the real party in interest, and the owner and holder, was adjudged not to be frivolous. Tamisier v. Cassard, 17 Abb. 187. See, also, Arrangoiz v. Frazer, 2 Hilt. 244. See, also, Kamlah v. Salter, 6 Abb. 226; S. C. 1 Hilt. 558; Duncan v. Lawrence, 6 Abb. 304; S. C. 3 Bosw. 103.

g. Illogical pleading. An answer which does not constitute a defense, but which stated facts that might, by being properly alleged, have constituted a defense, held, not frivolous. Alfred v. Watkins, 1 Code R. N. S. 343; Struver v. Ocean Insurance Co. 9 Abb. 23; S. C. 2 Hilt. 475. Where the complaint alleges a transfer to the plaintiff and possession of the note, an answer by an indorsee, denying the transfer only, without denying that the plaintiff had possession, is not frivolous. Chadwick v. Booth, 13 Abb. 249; S. C. 22 How. 23. See, also, Metropoli

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251. On issues of both law and fact, the issue of law to be first tried.
252. Trial, what.

253. Issue of fact to be tried by jury, unless waived or reference ordered.
254. Other issues to be tried by the court.

255. All issues to be tried before a single judge.

256. Either party may give notice of trial; note of issue. (Stenographer.) 257. Order of disposing of issues on the calendar.

§ 248. [203.] The different kinds of issues.

Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds :

1. Of law; and

2. Of fact.

a. No issue which can be triedcosts.-The complaint alleged that the defendant owed him (the plaintiff) $600 on a note; the answer did not deny or say anything about it, but alleged that the plaintiff owed him $40 for goods sold and delivered; to this the plaintiff made no reply. Held, that there was no issue to be tried, and that

§ 249. [204.] Issue of law.

An issue of law arises,

no notice of trial was necessary; that the plaintiff could take judgment without a jury, and was, therefore, not entitled to $15 trial fee, nor to $7 for proceedings subsequent to the notice of trial, and was entitled to $7 only for proceedings before notice of trial. Pardee v. Schenck, 11 How. 500.

1. Upon a demurrer to the complaint, answer or reply, or to some part thereof.

§ 250. [205.] (Am'd 1849.) Issue of fact.

An issue of fact arises,

1. Upon a material allegation in the complaint controverted by the answer; or,

2. Upon new matter in the answer controverted by the reply; or, 3. Upon new matter in the reply, except an issue of law is joined thereon.

§ 251. [206.] On issues of both law and fact, the issue of law to be first tried.

Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases the issues of law must be first tried unless the court otherwise direct.

a. No judgment before both issues disposed of.-Where there is an issue of law and an issue of fact joined in a cause, no judgment for costs can be entered in favor of the party who prevails upon the issue of law, until the issue of fact is disposed of. Such a judgment would, if rendered, be irregular, and would be set aside on motion. Masters v. Barnard, 6 How. 114; S. C. 1 Code R. N. S. 407.

b. Which issue tried first.-In a case where there are issues both of law and fact, and the cause is brought on for trial of the issues of fact, the court will then determine

whether it shall be tried before the issue of law is disposed of. If no objection is made, it will be deemed to have been tried first by the order of the court. Warner v. Wigers, 2 Sandf. 635. See, also, Fry v. Bennett, 9 Abb. 45; S. C. 3 Bosw. 200; S. C. Aff'd, 28 N. Y. (1 Tiff.), 324.

c. On demurrer.-The cause may be put on the calendar by the plaintiff, for trial on the issues of fact, without waiting to have the issues of law determined, on demurring to one of several defenses in an answer. Palmer v Smedley, 13 Abb. 185.

§ 252. [207.] (Am'd 1851, 1852.) Trial, what.

A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

a. Trial.-In any case where the merits | of a cause are brought up, and it is placed on the calendar, and the issues, whether of law or of fact, and whether arising on the pleadings or out of subsequent pleadings, are presented to the court, and by the court judicially examined, there is a trial within the meaning of this section (252) of the Code. Place v. Butternutts Woolen and Cotton Manufacturing Co. 28 How. 184.

b. Issue of law where tried.-Under the Code of 1849, an issue of law on demurrer might be argued at a special term held in a different county in the district from that indicated as the place of trial in the complaint, and no necessity existed of first applying to the court to change the place of trial. Ward v. Davis, 6 How. 276; S. C. 28 Barb. 605.

c. Ready for trial.-An action cannot be tried in sections without leave of the court, nor can it be regularly brought to trial, until it is in such a situation that a final judgment can be rendered between all the parties to it. Ward v. Dewey, 12 How. 193. See, also, Wilson v. Forsyth, 16 How. 448.

d. Extra allowance of costs.-An assessment of damages by a sheriff's jury is not

included in the trial of an issue. Randolph v. Foster, 4 Abb. 262; S. C. 3 E. D. Smith, 648. e. Voluntary nonsuit.-A nonsuit voluntarily submitted to, after evidence has been put in, is a trial. Allaire v. Lee, 1 Abb. 125; S. C. 4 Duer, 609.

f. Dismissal of complaint. -Where an action is at issue, and the plaintiff fails to appear when the cause is called upon the calendar, and the defendant takes an order that the complaint be dismissed, a fee of $12 for the trial of a cause is allowable. Dodd v. Curry, 4 How. 123. See, however, Tillspaugh v. Dick, 8 How. 33.

g. Frivolous demurrer.--A hearing on a motion for judgment, on the ground of the frivolousness of the demurrer under section 247, is not a trial. Bell v. Noah, 24 How. 478; Butchers' and Drovers' Bank of Providence v. Jacobson, 22 id. 471; Rochester City Bank v. Rapelje, 12 id. 26; Marquisee v. Brigham, id. 399; Roberts v. Clark, 10 id. 451; contra, Pratt v. Allen, 19 How. 450; Roberts v. Morrison, 7 id. 396; Lawrence v. Davis, id. 354; Gould v. Carpenter, id. 97. See, also, in this connection § 307, subd. 4, post.

§ 253. [208.] (Am'd 1849, 1852.) Issue of fact to be tried by jury, unless waived or reference ordered.

An issue of law must be tried by the court, unless it be referred, as provided in sections 270 and 271. An issue of fact, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be

tried by a jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided in sections 270 and 271.

a. Construction.-No construction can be given to section 275 of the Code, by which a plaintiff can compel a trial by the court, by merely alleging in his complaint grounds for equitable relief, and if he fails in that, secure a trial of an action for fraud and an assessment of damages without a jury. Such a course would violate both the constitution and § 253 of the Code. Bradley v. Aldrich, 40 N. Y. (1 Hand), 504.

b. Action of ejectment-reforming instrument. In an action of ejectment, where an issue is raised by the answer, upon reforming the instrument under which ejectment is brought, the issue of fact must be tried by a jury, unless such trial is waived, or it be referred by the consent of parties. The issue as to reforming the contract is to be tried by the court. Olendorf v. Cook, 1 Lans. 37 and 42.

c. Complaint, uniting equitable and legal relief.-Where a complaint unites a claim for damages for the improper sale of a pledge, with a cause of action for the redemption of the pledge, and the facts disclosed on the trial do not entitle him to the equitable relief, the court will order the action for the tort (in improperly disposing of the pledge) to be tried by a jury. Genet v. Howland, 30 How. 361; S. C. 45 Barb. 560. And see Lewis v. Varnum, 12 Abb. 305.

d. Trial at chambers.-In the case of an issue joined upon an answer which sets up a defense amounting to the plea of nul tiel record, it is irregular for a judge at chambers, and without a jury, to try that issue and to find his conclusions of fact and law, and order judgment. Fasnacht v. Stehn, 53 Barb. 650; S. C. 5 Abb. N. S. 338.

e. On appeal cannot object to mode of trial.-Where, on a proper case, a party is entitled to have his issue tried by a jury, and he omits to claim such right, he cannot, on appeal, object to the mode of trying such issue. Pennsylvania Coal Co. v. Delaware and Hudson Canal Co. 1 Keyes, 72.

f. Second trial.-In the case of a will admitted to probate upon the verdict of a jury, where a subsequent action is brought against a party to the former proceedings to enforce the provisions of the will, he (the above party) will not be entitled to a jury trial. That would be substantially a second trial of the issue, which was never a matter of right. Nichols v. Romaine, 3 Abb. 122; modifying S. C. 9 How. 512.

g. Trial by sheriff's jury.-Where an action for chattels is commenced, it is not proper for the plaintiff upon taking an inquest, to take an order directing the assessment of his damages by a sheriff's jury. In such a case, the order would be set aside on motion, and the cause restored to the calendar. Gilberton v. Fleischel, 5 Duer, 652. It is not

proper for the court to send to a sheriff's jury for trial, a cause in which there is an issue of fact. Dolan v. Petty, 4 Sandf. 673.

h. Divorce.-Where an action for divorce is commenced on the ground of adultery, and issues are raised by the pleadings, the issues made by the pleadings may be tried without framing issues specially for the purposes of a trial. Parker v. Parker, 3 Abb. 478, See new Rule 40.

i. Waiving right to jury trial.-The right to a trial by jury in a proper case is ab solute, and any decision denying such right would be erroneous; but the right may be waived, and if a party enters voluntarily upon a trial by the court, without objection, he is understood to consent thereby to that form of trial If he remains silent, such silence is a consent. Greason v. Keteltas, 17 N. Y. (3 Smith), 491; Aff'g S. C. 19 Barb. 608, sub nom. Newcomb v. Keteltas; Moffat v. Mount,

17 Abb. 4. In a case where there are several issues, and it is clear that some of them are competent to be tried by the court without a jury, an objection taken after the trial has begun by the court, that the action is one which should have been tried by a jury, should be overruled; the rule being, that if a party wishes to secure his right of trial of any of the issues by a jury, his application must be made before the commencement of the trial, so that such right may be separately passed upon by the court before the trial. Entering upon the trial without objection or application for a jury trial, is a waiver. Mc Keon v. See, 4 Rob. 449.

j. Insurance policy. An agreement was made to insure and deliver a policy, but before the policy was delivered a loss occurred. An action lies on the contract and loss, and it should be tried by a jury even before a policy is delivered. Rockwell v. Hartford Fire Insurance Co. 4 Abb. 179.

k. Violation of fire laws.-Where an action is commenced to recover penalties for the erection of buildings in violation of the fire laws, and for the removal of such buildings, but which does not seek an injunction, the defendant is entitled to a jury trial. Fire Department of City of New York v. Harrison, 2 Hilt. 455; S. C. 9 Abb. 1; 17 How. 273; 18 id. 181.

1. Supplemental complaint.-If neither party could insist on a jury trial upon the original complaint and issue, they still remain debarred from doing so, notwithstanding a supplemental complaint has been put in. Such supplemental complaint merely grafts new proceeding on the old action. Currie v. Cowles, 9 Bosw. 642.

m. Partnership settlement.-Where the court is satisfied, on an examination of the issues, that the several interest of the parties will, on the trial, involve much contra

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