CHURCHILL v. WITBECK

CHURCHILL v. WITBECK. N. Y. Supreme Court, First District, Special Term, at Chambers; February, 1890. 1. Pleading ; answer alleging faAlu/re of consideration.] In an action on a promissory note by the payee against the maker, the answer alleged “that there was an entire failure of consideration for the promissory note in the complaint set forthand denied “that the amount or any part thereof is due to plaintiff.” Held, not frivolous, as stating mere conclusions of law. 2. The same.] Whether such answer would be held sufficient on demurrer, query? Motion by plaintiff for judgment on an answer as frivolous. Augustine It. McMahon, plaintiff’s attorney, for motion. The answer is frivolous as it states only conclusions of law, the results of facts which should themselves be pleaded to raise an issue (Cohn v. Goldman, 76 N. Y. 284; Knapp v. City of Brooklyn, 97 Id. 520; McMurray v. Gifford, 5 How. Pr. 14; Edson v. Dillaye, 8 Id. 273; Fosdick v. Groof, 22 Id. 158; Sprague v. Parsons, 11 Civ. Pro. R. 17; Clark v. Dillon, 97 N. Y. 370; Clark v. Bowe, 60 How. Pr. 98; Berrigan v. Oviott, 3 How. Pr. N. S. 199). Augustus W. Hicoll, for defendant. [MAJORITY — Patterson, J.] Patterson, J. The motions in these causes are to strike out the answers as frivolous and for judgment. That these answers are inartificial is clear, but they state distinctly that the defense is failure of consideration as between maker and payee of the notes, the suits being between those parties. It cannot be said that these defenses are clearly frivolous, and that a mere inspection of the answers shows it. The plaintiff is fully apprised of what the defenses are, and it is not at all clear that the answers would be bad on demurrer; failure of consideration is a fact and not altogether a conclusion to be drawn from facts. At all events the subject is fairly open to discussion, and, therefore, these motions must be denied. No costs in either of the motions.