Schmidt v. McCaffrey

70 N.Y.S. 1011, 34 Misc. 693

Opinion

GAYUOR, J.

Section 538 of the Code of Civil Procedure is that “a sham answer or a sham defence may be stricken out,” etc. This distinguishes an “answer” and a “defence'’ as separate things in the terminology of pleading, whereas the term “answer” includes the term “defence,” An answer may consist of a denial or denials only, or of a “defence” only, or of both. Code Civ. Proc. § 500. But a denial cannot be struck out as sham, i. e., false, but only a “defence.” Wayland v. Tysen, 45 N. Y. 281. This serves to illustrate the. differ ence in terminology between a “denial” and a defence.” The inexact and Unscientific language of the Code ought to be that a “defence” may be struck out as sham. There are no defences pleaded here, but only a general denial.

The motion is denied, with $10 costs.