West End Savings & Loan Ass'n v. Degan

39 N.Y.S. 414

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1896
• Status: Published

Opinion

LANDON, J.

An answer must be tested by the complaint, and, if it puts in issue its material allegations as to the defendant, it is good enough for the purposes of the action. This answer did so, and therefore is not frivolous. No doubt the defense is an unreasonable one, but the plaintiff might have served with the summons notice upon the defendant that no personal claim was made upon him (Code Civ. Proc. § 423), and thus probably have protected himself against this answer.

The order is reversed, with $10 costs and disbursements, and the motion below denied, with $10 costs, without prejudice to any motion, as plaintiff may be advised. All concur.