
    National Broadway Bank v. Swift et al. (two cases.)
    (Supreme Court, General Term, First Department.
    
    February 11, 1891.)
    Action on Note—Pleating—Frivolous Answer.
    In an action against one of three makers and indorsers of a note, an answer alleging that before action brought plaintiff had sued on the note, and recovered judgment against the other makers and indorsers, and that the cause of action was thereby merged in the judgment, which was a bar to any further action on the note, cannot be stricken out as frivolous.
    Appeal from special term, New York county.
    Two actions brought by the National Broadway Bank, in the city of New York, against Henry F. Hitch, impleaded with Humphrey H. Swift and Alfred Swift, as members of the firm of H. H. Swift & Co., to recover on a promissory note made by said firm. Defendant Hitch appeals from orders striking out his answer as frivolous. The following is a copy of the answer: “The defendant Henry F. Hitch, by Henry De Forest Weekes, his attorney herein, separately answers the complaint herein, as follows: He alleges that heretofore the plaintiff commenced an action upon the promissory note alleged in the complaint herein in the supreme court, and that on the 21st day of July, 1886, in the said supreme court, in said action, a judgment was entered and recovered by said plaintiff against Humphrey H. Swift and Alfred G-. Swift, as makers and indorsers of said promissory note under the said firm name of H. H. Swift & Co., which judgment was for the sum of five thousand and seventy-nine and 22-100 dollars, damages and costs, and was recovered for and upon the same cause of action, for and upon which said plaintiff commenced and is prosecuting this action against this defendant, impleaded with said Swifts, and that the said judgment so entered and recovered has not been vacated, reversed, or modified, but still remains with the same force and effect which it had at the time of the rendition and recovery thereof; and this defendant alleges, on information and belief, that the said judgment so recovered merges the said promissory note, and all and every cause of action thereon, and is a bar to any recovery thereon or herein against this defendant, and that by the entry and recovery of said judgment the said plaintiff is precluded from maintaining this action against this defendant. Wherefore said defendant demands judgment against the plaintiff for the dismissal of the complaint and for the costs of this action. ”
    Argued before Van Brunt, P. J., and Daniels and O’Brien, JJ.
    
      H. A. Forster, for appellants. Kelly & MacRae, for respondent.
   Per Curiam.

We are of the opinion that the points of the respondent demonstrate beyond question that the answer which was stricken out as frivolous was not subject to that criticism. The order appealed from has been argued by him precisely the same as though it came before this court upon a demurrer, and the question involved is certainly not so clear in favor of the respondent as to justify the court in striking out the answer as frivolous. The order should be reversed, with $10 costs and disbursements.  