Thomas Hill, Jr., Respondent, v. Abram L. Warner, as Executor of the Last Will and Testament of Sarah Warner, Deceased, Appellant, Impleaded with Others

Thomas Hill, Jr., Respondent, v. Abram L. Warner, as Executor of the Last Will and Testament of Sarah Warner, Deceased, Appellant, Impleaded with Others. Pleading — denial of knowledge or information sufficient to form a belief whether a notice of entry of judgment was served — it is not fi ivolous — remedy if it is false. An answer interposed in an action, brought to recover upon an undertaking given on an appeal in another action, which alleges that the defendant, the executor of the surety upon the undertaking, has no knowledge or information sufficient to form a belief as to whether the respondent in such other action served upon the attorneys for the appellant therein, more than ten days before the commencement of the present action, a notice of the entry of the judgment affirming the judgment appealed from, puts a. material fact in issue, and is not frivolous. If the answer is false, the plaintiff’s remedy is by a motion to strike it out as sham. Appeal by the defendant, Abram L. Warner, as executor of the last will and testament of Sarah Warner, deceased, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12th day of September, 1898, as overrules said defendant’s answer as frivolous and directs judgment for the plaintiff for the relief demanded in the complaint. The allegations of the complaint pertinent to this motion show that, on the 16tli day of September, 1895, the plaintiff recovered a judgment in the Superior Court of Buffalo against the defendant Abram L. Warner for $5,612.92; that an appeal was taken from this judgment, and the usual undertaking given to stay execution, which was duly executed by Sarah Warner and Henry Weill; that this judgment was affirmed in the Appellate Division; that a written notice of the- entry of judgment of. affirmance was served upon the appellant’s attorneys in that action, and also upon the sureties, more than ten days preceding the commencement of this action; that no part of the judgment has been paid, and that the said Sarah Warner died, leaving a last will and testament, in which all of the defendants, with the exception of Weill, were named as executors, and that they are now acting in that capacity, pursuant to letters testamentary issued to them out of the Surrogate’s Court of said county. The judgment debtor, Abram L. Warner, answers as executor, alleging: “ That he has no knowledge or information sufficient to-form a belief as to whether or not the plaintiff in the action of Thomas Hill, Jr., against Abram L. Warner, and in this action, more than ten days before the beginning of this action, caused to be served and served upon the attorneys for Abram L. Warner a written notice of the entry of the judgment of the Appellate Division of the Supreme Court, affirming the judgment of the late Superior ° Court of Buffalo, as alleged in the complaint, and; therefore, denies-the same.” And the answer also contains a denial, similar in form, of the averment in the complaint, alleging that no part óf the judgment has been paid. The motion was made solely on the ground that the answer was frivolous. Edward L. Jellinek, for the appellant. Simon Fleischmann, for the respondent. [MAJORITY — Spring, J.:] Spring, J.: It was essential for the' plaintiff to aver that notice of the entry of the judgment was served upon the attorney for the appellant, and also upon the sureties. (Code Civ. Proc. § 1309; Porter v. Kingsbury, 71 N. Y. 588; Rae v. Beach, 76 id. 164 ; Chilson v. Howe, 23 N. Y. St. Repr. 26.) The defendant, therefore, could put this fact in issue, and his answer does this by an allegation conforming to the requirements of the Code. Such an answer cannot be overruled as frivolous. (Trumbull v. Ashley, 26 App. Div. 356; Bennett v. Leeds Mfg. Co., 110 N. Y. 150 ; Byrne v. Hegeman, 24 App. Div. 152; Stockton v. Kenney, 24 Misc. Rep. 300.) The truth or falsity of the answer cannot be determined upon this motion. The vice of a sham answer is its falsity, and a defense of that kind can be stricken out on motion. (Code Civ. Proc. § 538.) A frivolous pleading is one which on inspection is inherently bad, that is, it contains no defense. While it may be quite apparent the pleading is interposed to gain time the court cannot say, on a bare examination of it, that this denial of a material allegation of the complaint is made for that purpose. Issues raised in a permissible manner cannot be disposed of in that summary -way. The order is reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements.