Delmar v. Kinderhook Knitting Co.

134 A.D. 558, 119 N.Y.S. 705, 1909 N.Y. App. Div. LEXIS 2915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1909
• Status: Published

Opinions

Per Curiam:

The motion below was not to overrule the demurrer as frivolous, but was for judgment on the pleadings under section 547 of the. Code of Civil Procedure, the grounds of the motion being, jvrs% that the demurrer was frivolous, and, secondly, that the plaintiff was entitled to judgment upon the pleadings as they stood. ITpon such a motion the time-honored rule that a pleading will not be stricken out as frivolous if it requires argument to demonstrate that it is frivolous does not apply. As we tliink that the complaint clearly states a cause of action, the order was proper and should be affirmed, with ten dollars costs and disbursements, with leave, however, to the defendant to withdraw its demurrer and to answer within twenty days on payment of costs in this court and in the court below.

Present — Ingraham, McLaughlin, Laughlin, Clarke and Scott, JJ.; McLaughlin, J., dissented.