
    Colt v. Davis.
    (Supreme Court, General Term, Third Department.
    
    November 20,1888.)
    1. Pleading—“Irrelevant” Answer—Motion to Strike Out.
    Under Code Civil Proo. N. Y. §§ 537, 538, providing that judgment may be given on a frivolous answer, and that a sham answer or a sham defense may be stricken out, one of several defenses cannot be stricken out as irrelevant, “irrelevant” being equivalent to “frivolous.1,
    
    2. Same—Sham Answer—Promissory Note—Action by Holder.
    In an action on a promissory note, a defense.denying information and belief that plaintiff is the holder and owner of the note, and averring that another is the holder and owner, cannot be stricken out as sham.
    3. Same—Consolidation of Actions.
    On the consolidation of actions, the answer in one of them, not being sham, cannot be stricken out.
    Appeal from special term, Saratoga county.
    Action by Jessie L. Colt against George K. Davis, formed by the consolidation of two actions, each upon a promissory note. The fifth defense was the note given by Bobert A. dolt to defendant. Defendant appeals. The following are the sections of Code Civil Proc. 2L Y. referred to in the opinion: “See. 537. If a demurrer, answer, or reply is frivolous, the party prejudiced thereby * * * may apply * * * for judgment thereupon, and judgment may be given accordingly. * * *” “See. 538. A sham answer or a sham defense may be stricken out by the court,” etc.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      E. B. Cushing, for appellant. Ii. B. Fish, for respondent.
    
      
      In Smith v. Hilton, 2 N. Y. Supp. 820, it was held that certain allegations in an answer should be stricken out as “irrelevant and redundant. ”
    
   Learned, P. J.

An action was brought January 30, 1888, by plaintiff against defendant, on a promissory note for $5,000, signed by defendant and John I. Davis, payable to the order of “Mrs. Robert A. Colt. ” Another action was brought February 21, 1888, by plaintiff against defendant, on another note for $2,000, signed by defendant, and payable to plaintiff’s order. Each complaint alleges that plaintiff is the holder and owner of the note therein described. To each complaint the defendant put in an answer; defenses 2 and 3 denying information and belief that plaintiff is the holder and owner of the note, and averring that Robert A. Colt is such owner and holder. In each answer the defendant sets up the defense that Robert A. Colt gave defendant his promissory note for $805.36, now due and payable, and now held and owned by defendant; also payment of $670; also work, labor, and services done and performed, etc., worth $1,000. A motion by defendant to consolidate, and a motion by plaintiff to strike out portions of the answers as sham and irrelevant, and for judgment, were heard together. 1. The court ordered defenses 2 and 3 to be stricken out as sham. 2. Defense 5 to be stricken out as irrelevant. 3. The actions to be consolidated. 4. The answer in the second action to be stricken out. 5. The consolidated action to be severed, and judgment rendered for $5,267.67, with interest, and continued for the remainder of plaintiff’s claim, $1,670, with interest.

This was based on two affidavits of plaintiff and her husband, made out of this state, to the effect that she is, and he is not, the holder and owner of the notes. Also on the admission of defendant’s attorney that the payments and counter-claims set up in the two answers are identical.

There is now no authority for striking out an answer as irrelevant. Code, §§ 537, 538. “Irrelevant” is equivalent to “frivolous.” A frivolous answer is not stricken out, but judgment is granted thereon, (Strong v. Sproul, 53 N. Y. 497;) in which case it is also held that a frivolous answer must be treated an as entirety, and that a judgment could not be rendered for plaintiff when a part only of the answer was frivolous. Therefore the fifth defense could not be stricken out as irrelevant.

Thompson v. Railway Co., 45 N. Y. 468, holds that a denial of part of the material allegations in a complaint cannot be stricken out as sham; just as Wayland, v. Tysen, Id. 281, had held that such a denial of all the allegations in the complaint could not be stricken out as sham. In Hays v. Southgate, 18 Alb. Law J. 318, 10 Hun, 511, it was held that a defendant might show that the plaintiff was not, and some other person was, the owner of the note in suit.

In Conselyea v. Swift, 103 N. Y. 604, 9 N. E. Rep. 489, cited by plaintiff, there was no denial by defendant of any allegation in the complaint, and it was held the defendant had the affirmative of the issue; and it will be seen that in that case defendant set up an affirmative defense, and that his allegations as to ownership were merely a conclusion from that defense, viz., that he was an accommodation indorser, etc.

The two actions being consolidated, we see no authority for striking out an answer of one of them. It could not be said to be sham, and there is no other ground laid down for striking out an answer. Code, § 538. The judgment roll should contain the pleadings in both actions. 2 Wait, Pr. 261.

We think that the order, except as to the consolidation, should be reversed, with $10 costs and printing disbursements, and motion denied, with $10 costs.

Ingalls, J., concurs.

Landon, J., (concurring.)

Strong v. Sproul, 53 N. Y. 497, cited above, was decided in 1873. The present Code, § 508, authorizes a “partial defense.” If a partial defense is sham or frivolous, it should not prevent the plaintiff from obtaining judgment upon that part of his claim which is only met by such a worthless answer. He should, upon motion, be allowed to enter judgment for the undefended part of his demand, and the action should be severed, and should continue as to the defended part. Sections 511, 512. If on defendant’s motion two actions are consolidated, his duplicate answers of the same matter are not necessary; but whether one of them be stricken out or not is immaterial; one is only a copy of the other. I think the plaintiff’s practice was right, but I concur in the result, for the reason that the verified denial of the plaintiff’s title cannot be stricken out as sham, and, if that remains, the other defense cannot be said to be frivolous, and whether there are duplicate answers to the consolidated actions does not seem to be material.  