
    Emma Arnold, Appellant, v. Frank Arnold and Catharine Arnold, Respondents.
    Third Department,
    November 10, 1909.
    Practice — improper counterclaim — demurrer — sham answer.
    If the facts alleged do not constitute a proper counterclaim, the remedy is by demurrer; they cannot be stricken out on an order to show cause.
    A sham answer is one which is false; it may be stricken out under section 588 of the Code of Civil Procedure.
    Appeal by the plaintiff, Emma Arnold, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Fulton on the 23d day of August, 1909, denying the plaintiff’s motion to strike out an alleged counterclaim in defendants’ amended answer.
    
      William H. Bass and Clarence W. Smith, for the appellant.
    
      Getman & Fraser [McIntyre Fraser of counsel], for the respondents.
   Kellogg, J.:

The motion came before the court upon an order to show cause why the alleged counterclaim should not be stricken out upon the ground that it is not a proper counterclaim. If the facts alleged do not constitute a counterclaim, demurrer is the proper remedy (Hanson Co. v. Collier, 119 App. Div. 794.) A sham answer is one which is false, and may be stricken out under section 538 of the Code of Civil Procedure. (Rochkind v. Perlman, 123 App. Div. 808.) The criticism upon the alleged counterclaim is not that it is false, but that conceding the facts stated to be true, it does not state a proper counterclaim. Perhaps, if the answer is insufficient as claimed, a motion for judgment upon the ground that it is frivolous was available to the plaintiff under section 537 of the Code of Civil Procedure. But if his motion were denied he coidd pursue that remedy no further, and is- without appeal. The plaintiff has not taken the proper proceeding to question the sufficiency of the alleged counterclaim. The order should, therefore, be affirmed, with ten dollars costs and printing disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  