Wheeler v. Tracy

15 Jones & S. 368

Opinion

By the Court.—Sedgwick, Ch. J.

The answer in this case, after attempting to put in issue several allegations of the complaint, made, in sufficient form, a defense based upon alleged fraudulent representations of the plaintiff. The plaintiff moved for judgment on the answer as frivolous. The order-made on the motion was, that the motion be denied, on condition that the defendant servean amended answer, which should contain only that part of the original answer which alleged fraud.

The defendant appealed from that part of the order which constituted the so-called condition. I am of opinion that the appeal lies, because the defendant was entitled to have the motion denied unconditionally. The effect of striking out the condition will be, to .give the defendant what he is entitled to, as matter of right, and not of discretion. If it had been matter of discretion, appealing from a condition would result in giving as an absolute right, something that has not that character.

It seems to be clear that the motion should have been denied, because, with the defense of fraud standing in the answer, the plaintiff was not entitled to judgment.

Order reversed with $10 costs, and disbursements to be taxed.

Freedman, J., concurred.