Schmidt v. McCaffrey

New York Supreme Court

Schmidt v. McCaffrey

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

CourtNew York Supreme Court

DecidedMay 15, 1901

StatusPublished

Cited by1 cases

This text of 70 N.Y.S. 1011 (Schmidt v. McCaffrey) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schmidt v. McCaffrey, 70 N.Y.S. 1011, 34 Misc. 693 (N.Y. Super. Ct. 1901).

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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[1012]*1012ence 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.

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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[1012]*1012ence 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.

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Bluebook (online)

70 N.Y.S. 1011, 34 Misc. 693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmidt-v-mccaffrey-nysupct-1901.

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