
    Farmers and Mechanics’ National Bank of Buffalo, Pl’ff, v. Samuel Rogers, Def’t.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed December 3, 1888.)
    
    Pleading—Feivolods demubbeb and sham pleading—Peopeh pbaotice as to—Code Oiv. Pbo., §§ 537, 538.
    A demurrer cannot be stricken out for frivolousness, but remains upon tbe record and forms part oí tbe judgment-roll. It is only where tbe pleading is sbam that it may be stricken out. Code Civ. Pro., §§ 557, 538.
    Appeal from an order striking out defendant’s demurrer to plaintiff’s reply for frivolousness.
    
      L. F. & G. W. Bowen, for def’t; Lewis & Moot, for pl’ff.
   Hatch, J.

We concur in the opinion of Chief Justice Beckwith, delivered at special term, upon the decision of this motion. Had his direction been followed, nothing would remain but to affirm the judgment directed. But the plaintiff has not followed such direction; instead of entering judgment adjudging the demurrer to the reply frivolous, as ordered by the court, it has entered an order striking out the same from the record. Not only is this opposed to the direction, but we find no authority for such practice.

Code Civil Procedure, section 637, provides that if a demurrer is frivolous, the party prejudiced thereby may, upon a notice of not less than five days, apply to the court, or a judge thereof, for judgment thereupon, and judgment may be given accordingly.

The notice of motion is not printed in the record, so that we cannot tell exactly what relief the plaintiff asked. The order, as entered, recites that it was a motion to strike out the demurrer as frivolous, and if this were so the motion should have been denied. But the court, in disposing of the motion, has assumed it to be a motion for judgment upon the demurrer, which assumption we adopt, as it is in conformity with the authority of the section already cited. This section takes the place of section 247, old Code, which, so far as the question here is concerned, is the same.

In Briggs v. Bergen (23 N. Y., 162), the court held that a frivolous pleading is not stricken out, but remains upon the record and forms part of the judgment-roll.

It is only .where the pleading is sham that it may be stricken out on motion. Code Civ. Pro., § 638.

The order entered is, therefore, vacated and set aside, with leave to plaintiff to enter judgment, declaring the demurrer frivolous, with ten dollars costs and disbursements to the defendant.

Titus, J., concurs; Beckwith, Ch. J., not sitting.  