Wilcox v. Home Life Insurance

117 N.Y.S. 937

Opinion

PER CURIAM.

Plaintiff obtained an order for judgment on the answer, under section 547 of the Code, created by Laws 1908, p. 462, c. 166, § 1, which order, however, gave leave to the defendant to plead over on payment of costs and upon serving an amended answer within six days from service of the order; otherwise, final judgment to be entered upon the pleadings. Defendant appeals from that part of the order which grants judgment.

The reason alleged for granting the order seems to be that the first defense is insufficient to raise an issue, but that the second defense had merit. A summary judgment should not be given on an answer, tinless the answer as a whole is frivolous, since, if one of the defenses is good, the whole answer is clearly not frivolous. Strong v. Sproul, 53 N. Y. 497.

The order is reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.