Churchill v. Witbeck

10 N.Y.S. 263, 24 Abb. N. Cas. 122, 1890 N.Y. Misc. LEXIS 2068

• Court: New York Supreme Court
• Decided: February 10, 1890
• Status: Published

Opinion

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 answer 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 the 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.