
    Leila O. Henriques and Mary A. Mason, Appellants, v. Henriette Olive Trowbridge, Respondent, Impleaded with Others.
    
      Reply — lohen required by order of the court and not interposed in denial of a counterclaim set up in the answer — a judgment directed thereon as frivolous is improper.
    
    Where a reply is served, not to prevent .a judgment for affirmative relief on a counterclaim set up in the answer, but in compliance with an order of the court directing it in order that the court may ascertain how far the allegations in the answer are admitted by the plaintiff and to what extent the defendant must make proof thereof on the trial, it is not proper for the court, on a motion for judgment made ón the ground that the reply is frivolous, to proceed to hear arguments as to whether, assuming the facts alleged in the. answer to' be true, the complaint is completely overthrown thereby, and, if of the opinion that such is the case, to give judgment for the defendant.-
    
      Semble, that section 537 of the Code of Civil Procedure applies only to a reply ■ which is served for the reason that the answer sets up a counterclaim.
    
      Appeal by the plaintiffs, Leila O. Henriques and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1891, granting the motion of the defendant Henriette Olive Trowbridge for judgment on the-plaintiffs’ reply to her answer on the ground that such reply was frivolous.
    
      Delos McCurdy, for the appellants.
    
      Thomas G. Shearman, for the respondent.
   Rumsey, J.:

■In this action the plaintiffs seek to obtain a partition of certain real estate of which Miriam A. Osborn died seized. The complaint alleges that the plaintiffs are the only surviving sisters of Miriam Osborn, and that the defendant Henriette Olive Trowbridge is a daughter of a deceased brother, and that they three are the only heirs at law and next of kin of the said Miriam Osborn, and that each one of them is entitled to one-third of the real estate of which Miriam Osborn died seized. The complaint contains many other allegations having for their object to establish the proposition that, although Miriam Osborn died leaving one son, yet 'that he did not become entitled to any of the real estate of which she died the owner, but that, because of various facts which are set out in the complaint, her collateral relatives were her real heirs at law. The answer set up three separate defenses. In the third answer there was contained an express allegation that Miriam A. Osborn, left her surviving a son, Howell Osborn, who was her only child and heir at law. That answer then further set up facts tending to show that the defendant Henriette Olive Trowbridge was, by the will of Howell Osborn, entitled to succeed to all his interest in the real estate of which his mother died seized. The court required the plaintiffs to reply to this answer, and, accordingly, such a.pleading was interposed. After that had been done the defendants moved for judgment on account of the frivolousness of the reply, and the learned judge at Special Term upon that motion granted judgment dismissing the complaint upon the merits. This is not the first time that such a motion has been made and granted and the order granting it reversed in this litigation. In the case of Henriques v. Garson (26 App. Div. 38), where substantially the same facts were alleged, it was held that the reply was not frivolous, and an order for judgment on account of the frivolousness of the reply was reversed. That reversal went upon the ground that it was a question upon pleadings as to .who were the heirs at law. of Miriam A. Osborn, and that was a question which could not properly be decided on a motion for judgment 'on the ground of the frivolousness■ of "the reply. The same question is presented in this case, although it is not presented by any issue raised. by the reply. The plaintiffs allege in their complaint all the facts upon which they rely to establish that they and the defendant Iienriette Trowbridge are the heirs at layf of Miriam Osborn, and it also appears by the complaint that Howell Osborn was her only child and survived his mother. The answer which was replied to adds nothing in that direction to the allegations of the complaint, but if the plaintiffs have succeeded by their complaint in raising "any legal question as to who was the heir at law of "Miriam Osborn that question is still in the casei, as it was in thq Garson case, and the decision in that case is authority here.

But we do not think that this is a case where a defendant could be entitled to judgment for the frivolousness of a reply. The authority to give judgment for that reason is granted" by section 537 of the Code of Civil Procedure, and has no other foundation. The section provides: “ If a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party of not less than five days, may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly.” The complaint to which an answer can be interposed always demands some affirmative relief, and a reply ordinarily can only be interposed to an answer setting up counterclaims in which the defendant insists that he, too, is entitled to affirmative relief. This section is intended to meet cases of that kind, where"the party whose. "pleading is answered or demurred to, or replied to, has sought in that pleading affirmative relief against his opponent, and the demurrer, answer or reply is interposed to prevent such relief being given to him. In such a case, if no answer or reply were served, the plaintiff or the defendant, as the case might be, would be entitled to an affirmative judgment for the relief which he seeks. A frivolous answer or reply is the same as no answer, and, therefore, the Code has provided this summary way by which a person who makes a claim against his adversary is entitled to have that claim adjudged to him, in spite of a plainly frivolous attempt to keep him out of it. The cases mentioned in the Code are primarily only those where, if the pleading is frivolous-, affirmative relief can be awarded to the person upon whom the pleading is served, because it is asked id his pleading to which the frivolous one has been interposed, and he would have been entitled to it but for the frivolous pleading. For that reason, if section 537 shall be held to apply only to cases in which the reply is required to be served, because the answer sets up a counterclaim, its provisions are consistent in permitting the award of judgment to the person against whom the frivolous reply has been served; because, when the reply is out of the way, the facts set up in the answer as a counterclaim are admitted, and, therefore, nothing stands between the claim of the defendant and his right to have it adjudged to him.

But in a case like this a different condition .arises. The defendant asks for no affirmative judgment. If no reply had been interposed the facts set up in the answer would be deemed to be controverted, and the defendant would have been put to his proof. The reply, therefore, was not interposed to. prevent a judgment to the defendant of affirmative relief which he demanded, but simply that the court might ascertain how far the allegations in the answer were admitted by the plaintiff, and to what extent it would be necessary for the defendant to prove them upon the trial. It was simply for the purpose of simplifying the issue. Even had the plaintiff declined to interpose after an order for that purpose, the question would still remain whether, upon the facts alleged in the complaint and those admitted or qualified by the answer, the plaintiff was entitled to any relief. If a reply was directed to be served and it was not served, it might well be that the court would say that all facts alleged in the answer were admitted, and then the question would be presented whether, taking all those facts together, the plaintiff was entitled to relief. That would require a conclusion that the complaint was completely overcome by the allegations of the answer. But in the nature of things such a condition could hardly ever arise. It would require a consideration of all the pleadings in the case, and would be likely to involve serious questions of law; and for that reason it would not be proper, in our judgment, in a case of this kind, after holding that the reply was not sufficient; to proceed further and hear arguments upon all questions of law in the case, and finally give the judgment for the defendant, who had asked no affirmative judgment in his answer. Judgment is to be ordered on account of the frivolousness of the pleading only where the insufficiency of it is so clear that it appears upon the statément without any further argument. Whenever it is necessary, before awarding, judgment, to examine all the pleadings, it is, not proper to grant a motion for judgment on account of the frivolousness of the last pleading. For that reason, as well as for the reason expressed in the first part of this opinion, the order appealed from should be reversed, with ten 'dollars costs and disbursements, and the motion denied, with ten dollars costs.

•Van Bbunt, P. J., Babbett, Ingbaham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  